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

An article I wrote in 2017 entitled SCOTUS Scalia. This piece was an attempt to imagine future conflicts regarding the Supreme Court. One of my suggestions was to reverse current Supreme Court confirmation processes. Senators only provide “consent” once a nomination is submitted. Senators do not offer advice. However, Senators can offer advice Before consent. In particular, I suggested that they take a non-binding vote to shorten the list prior to any nomination being made. The idea works best when the Senate and President are controlled by separate parties. Confirmation is uncertain. Currently, though the Senate is split 50-50, there are no guarantees that any nomination will be approved.

Here’s my plan from 2017 for an article in Newsweek. Senators should give their “Advice” before they “Consent.”

The intro is here:

It is now over. 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. Senators need to conduct a non-binding, private straw poll of each Supreme Court member before a nomination can be made. The president could then get an estimate of the true confirmation vote count in advance. With a divided Senate, this advice works well in the present. Biden may still pick his preferred nominee if senators agree to this before he consents. This would reverse decades of confirmation wars.

This idea of seeking senatorial guidance before consent is not new. 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 how each member of the short list might perform.