Senators Should Give Their “Advice” Before Their “Consent”

2017 was the year I published an article entitled SCOTUS Scalia. This piece attempts to imagine future conflicts regarding the Supreme Court. My proposal was to reverse the Supreme Court confirmation process. Senators provide consent after the nomination has been made. They don’t offer “advice”. They do not provide advice. Before consent. In particular, I suggested that they take a non-binding vote to shorten the list prior to any nomination being made. If the Senate President and Senate are controlled differently, this idea could work well. However confirmation may not be guaranteed. Currently, though the Senate is split 50-50, there are no guarantees that any nomination will be approved.

My 2017 strategy for an editorial in Newsweek has been adapted. Senators should give their “Advice” before they “Consent.”

The intro is here:

The Supreme Court nomination process has been halted. The president and Senate could make a simple change, rooted in the Constitution. This would allow them to turn a partisan conflict into bipartisan discussion. The Constitution provides that the president may nominate Supreme Court justices “with the Advice  Consent of the Senate” (emphasis added). At the White House, President Biden recently reminded everyone that senators do not merely consent through a roll call confirmation vote—they provide “advice as well.”

Biden has participated in more than a dozen Supreme Court nominations and he is right. A private and non-binding straw vote should be conducted by senators for every member of the Supreme Court’s “shortlist” before any nominations are made. This would give the president an indication of how bipartisan the confirmation vote total might actually be. This advice would be perfectly appropriate for the current moment with an equally divided Senate chamber. Biden may still pick his preferred nominees if senators agree to this before he consents. This would reverse the long-running confirmation wars.

It isn’t a new idea to seek senatorial counsel before consent. In June 2003, Senator Patrick Leahy of Vermont asked President George W. Bush “to consult with leaders in the Senate on both sides of the aisle in advance of any Supreme Court nomination,” in order to select a “consensus nominee.” Leahy at that time chaired Senate Judiciary Committee. The Bush administration snapped Leahy’s olive branch, but the idea has stayed with me. I believe senators can take non-binding vote on any number of possible nominees, before the nomination is made. This would be helpful, in my opinion. Before consenting.

This approach would allow President Biden to get an idea of the dynamics of each member of the short list if he followed it.