Akhil Amar on “Advise and Consent”


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?

3 thoughts on “Akhil Amar on “Advise and Consent”

  1. Part of that stems from the increasing role the judiciary plays in “settling” the political controversies of the day (e.g., abortion, same-sex marriage).

    Exactly. It’s all politics now. There is no “fair play” in politics.


    “If judges are routinely providing the society’s definitive answers to moral questions on which there is ample room for debate … then judges will be made politically accountable,” Scalia said.
    That was more than 10 years ago, but Scalia maintained his distaste for the injection of politics into the Supreme Court nomination and confirmation processes.

    “I am not happy about the intrusion of politics into the judicial appointment process,” Scalia said in 2010. But, he said, considering the Supreme Court’s propensity for “deciding the nation’s morals,” Americans better get used to it, he said.

    “As long as [the constitution] is subject to revision,” he said, “you should get used to controversial and absurd political theater when a person is nominated.”


  2. The Senate does not have to give that vote. However, you can bet money that this is going to be an election issue. That does not bode well for the GOP. So, ask yourself this. What happens once primary season is over? That’s the real problem here. What GOP senators are facing challenges from the tea party types? Once that is over, voting and approving Obama’s choice may help them in the general election.

    Here’s the problem for the GOP. The American people are not impressed with their obstructionism. When it comes to social matters, the American people are increasingly liberal. Gay marriage is here and it is going to stay. The social conservatives can scream all they want, but the people have spoken loudly on the issue. The Democrats are going to spin the GOP’s refusal to even consider Obama’s nominee as an election issue and they will focus heavily on social issues and campaign funding problems. The GOP doesn’t have much to counter that.


  3. As a coequal branch of government, the Senate cannot be forced, legally speaking, to advise and consent on any presidential nominee. The Democratic-controlled Senate, for example, allowed Priscilla Owen’s nomination to the federal bench to languish for four years. George W. Bush nominated her on May 9, 2001, and the Senate didn’t confirm her until May 25, 2005. The Democrats’ action, to be fair, followed the Republican refusal to provide hearing or up-or-down vote for Jorge Rangel and Enrique Moreno during Clinton’s second term. Rangel was nominated in 1997 and pulled his name in 1998. Moreno was nominated in 1999 and never given a hearing. There’s a lot of bad blood on both sides of the aisle when it comes to federal judgeships. Part of that stems from the increasing role the judiciary plays in “settling” the political controversies of the day (e.g., abortion, same-sex marriage). A lot of it stems from the treatment Democrats meted out to Robert Bork in 1987, which gave us the term “borking.”


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