Akhil Amar is a liberal law professor at Yale. He is also an originalist. Amar is best known for his book America’s Constitution: A Biography. I have found it to be the most accessible introduction to the Constitution available. I consult it all the time.
While doing some research on whether or not the Senate had the constitutional right to refuse to give Barack Obama’s appointee to the Supreme Court an up or down vote, I came across “Games Over Center a Court,” a 2005 op-ed Amar wrote for The Washington Post.
In the give and take between the president and the Senate, the executive has the upper hand. Though the document speaks of senatorial “advice,” only the president makes actual nominations, and once this happens, it is hard for the Senate to say no. A president is always free to name his first choice over his third, while a senator who says no to her own third choice has no guarantee that the president will ever nominate one of the senator’s top two picks. In essence, a senator must vote down an actual person with no assurance that the unknown alternative behind Door No. 3 will be any better. Whereas the president need only make up his own mind, there may in fact be no single nominee who heads the wish list of a majority of senators.
Also, voting against a flesh-and-blood nominee with friends and family, and perhaps a compelling life story, is much harder than voting against an ordinary bill sponsored by the administration. While nothing in the Constitution’s text or history gives a nominee an absolute right to an up-or-down floor vote, basic notions of fair play make it hard to deny a high-visibility candidate such a vote.
If I read Amar correctly, he is saying here that the Senate does not have to give an up-or-down vote to Obama’s appointee. Thoughts?