At Balkinization, Jason Mazzone: Still the President: Garland, Kavanaugh, Trump. He argues:
When, after the death of Justice Scalia in February of 2016, President Obama nominated Merrick Garland to the Supreme Court, Senate Republicans took the position that because Scalia had died in a presidential election year, the choice of the next Supreme Court justice should be made by the next President. They therefore refused to proceed with any consideration of the Garland nomination. Senate Republicans claimed their position had nothing to do with Obama or Garland but rather they were merely adhering to a longstanding tradition of not considering Supreme Court nominees in an election year. As Rob Kar and I showed, however, there was no such tradition Indeed, the tradition supported consideration of the Garland nomination. And, on the merits, we said, there was no constitutional basis for asserting a power (or duty) to divest a sitting President of his authority, under Article II, section 2, to “nominate . . . judges of the Supreme Court.” A President in his final year in office is still the President with all of the powers Article II gives him.
Here we go again.
Some Senate Democrats (who, two years ago, themselves complained about the way their Republican colleagues were treating Obama and Garland) say that consideration of Brett Kavanaugh to replace Justice Kennedy must be delayed until after the conclusion of the Mueller investigation. Their argument is that President Trump might have engaged in criminal conduct and, if so, he should not be choosing Supreme Court justices particularly given that the Court might be asked in the future to rule on an issue (for example, can a sitting President be indicted?) involving Trump himself. This argument should be soundly rejected.
Under Article II, there is “a President” who, unless removed from office, resigns, dies or becomes incapacitated, serves a fixed “term of four years.” During that “term,” the President “shall have Power” as defined by the Constitution. A President under investigation, indicted, and even (if it comes to it) convicted by a trial court is still the President. …
I also want to be clear that my position has not changed since the Garland nomination, and it continues to be the exact opposite of Professors Mazzone and Kar. I agree of course that the President has all the powers of the office even if he is in the final year of his presidency, is under investigation, or even is in the midst of impeachment. But the President’s power, as relevant to Supreme Court appointments, is to nominate, and if the Senate consents, to appoint. The Senate refusing to consent does not deprive the President of these powers. The Senate’s decision to consent or withhold consent is not constrained by anything in Article II; it is entirely discretionary to the Senate. The Senate may refuse to consent based on some particular attribute of the nominee or on some more general aspect of the situation it confronts.
Thus I argued in 2016 that the Senate could withhold consent on Judge Garland’s nomination for reasons having nothing to do with Judge Garland individually; similarly the Senate could choose to withhold consent on Judge Kavanaugh’s nomination for reasons having nothing to do with Judge Kavanaugh individually, including (for example) the possible conflict of interest arising from the potential issue of the President’s criminal conduct. This might be a breach of tradition or of protocol among the branches, and it might be punished politically by voters as being partisan and unwise, but nothing in the Constitution says it can’t be done.
In sum, the advice-and-consent clause doesn’t put any duties on the Senate at all. It only provides that the President can nominate, and if the Senate gives its advice and consent, the President can appoint. Correspondingly, if the Senate withholds advice and consent, for whatever reason or indeed for no reason, the President may not appoint. That’s it.
NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.