St. Francis School of Law upper level students who have completed Constitutional Law with St. Francis Professor David Graubert are constantly reminded that the Constitution is alive and highly relevant every day.

In studying presidential powers, students learn about the appointments process. Most recently, with the passing of Justice Antonin Scalia, our country is left with a vacancy on the United States Supreme Court. Under Article II of the United States Constitution, the President is authorized to appoint Judges of the Supreme Court with the “Advice and Consent” of the United States Senate.

This advice and consent provision of the Constitution is one example of the separation of powers between the branches of government, reflecting a compromise among the framers of the Constitution that the founding fathers regarded as highly significant. As Professor Graubert puts it, “The push and pull in terms of who is nominated involves checks and balances, given the Senate’s role.”

Tracing the intent of the framers of the Constitution, one commentator concluded that the “evidence does not support an assertion that the constitutional provision for advice and consent contains an implicit obligation to act on the President’s nominations.” Adam J. White, Toward the Framers’ Understanding of “Advice and Consent”: A Historical and Textual Inquiry, 29 Harv. J of L. & Pub. Pol’y 102 (2005).

However, Dr. John Eastman has asserted in the context of delays in acting on judicial nominees by President George W. Bush that, “The refusal to hold hearings at all is not advice or consent….” Dr. John C. Eastman, Symposium: Federal Judicial Selection in the New Millennium: The Limited Nature of the Senate’s Advice and Consent Role, 36 U.C. Davis L. Rev. 633 (2003)

Another commentator observed that, “the brilliance of the Appointments Clause has become obscured by dysfunction past and present. The Senate’s deference to the President’s nominees in the past was just as damaging to effective government as some of the political polarization and obstruction of the current day.” Steven I. Friedland, Advice and Consent in the Appointments Clause: From Another Historical Perspective, 64 Duke L. J. 173 (2015)

Historical interpretation reveals that the interpretation of the advice and consent provision itself is not definitive. In Prof. Graubert’s opinion “it is more consistent with the intended purpose that the Senate give good faith consideration to nominee(s). As a practical matter—there are political effects no matter what course is taken by the Senate, as appropriate, even with no compulsion to do so. And, that there is no compulsion to ‘rubber stamp’ is of course good and proper.” The coming course of events will no doubt continue to prove interesting as we all observe the operation of the United States Constitution in action.