Implied Consent in Judicial Nominations

When Donald Trump took office there were 105 vacancies in the federal judiciary due to the Republican majority in the Senate having failed to consider Barack Obama’s nominations to those posts. That’s in addition to their lack of action on the Supreme Court vacancy after the death of Justice Antonin Scalia. If the Senate runoff elections in Georgia scheduled for next month result in the Republican incumbents keeping their seats Joe Biden can very likely expect more of the same from Senate Majority Leader Mitch McConnell. Now, this kind of obstruction is not just a Republican thing, Democrats have done the same to Republican presidents when they’ve held the Senate; that doesn’t make it right, and regardless of who holds the Senate come January 20, Biden should take steps to keep this from happening again to any president.

Judicial vacancies caused by Senate inaction creates a number of burdens on the nation’s justice system. Fewer judges means much longer delays in disposition of cases, creating greater costs in incarcerating suspects who spend a greater time waiting for their day in court. A reduction in the number of judges means a heavier case load for the ones remaining, causing them to spend less time on individual cases and leading to judicial burnout. These are just two examples of a number of problems created by playing politics with judicial appointments.

In the past the presidential response to such inaction by the Senate is to just “grin and bear it” since the Constitution doesn’t outline a specific process for confirmation of judges, along with the concern that taking action against it might be viewed as “playing politics”. But there is no excuse for this kind of behavior, regardless of which party is engaging in it, and there is something Joe Biden can do once he takes office.

The Constitution provides for consequences when the president fails to take action on a bill submitted to him after having passed both houses of Congress. If it remains on his desk without a signature or a veto more than ten days it becomes a law, just as if he had actually signed it. The only exception to this is if Congress adjourns before the end of the ten day period, in which case the bill does not become law.

In the case of a judicial vacancy the president sends a letter to the Senate specifying the person he is nominating to fill it. Using the legislative process as a precedent he could include in that letter his intention to consider the Senate’s consent to be implied if they take no action on his nomination within a reasonable time frame, say ninety days; he could say that at that time his nominee’s installation would proceed with a swearing in ceremony. Upon receipt of such a letter the Senate would have the choice to either proceed with the normal hearing and confirmation vote, challenge his letter in the Supreme Court, or take no action, thereby allowing the implied consent to stand.

If the Senate were to challenge the letter outlining the implied consent doctrine in court, I would imagine the first question the Justices would ask is why they’re not proceeding with the normal confirmation process instead of challenging the policy. It’s very likely that, as this would be a completely political issue, the Court would rule that they have no jurisdiction to intervene in the dispute. But the fact that this would be entirely new legal territory and the outcome so unknowable it might not come to a court battle.

If the Senate winds up actually being in Democratic hands when Biden is sworn in they could help him in cementing this policy by amending the rules for confirmation of nominees to formalize the implied consent policy. If at a later date the Senate changed hands it’s unlikely they would change it back, as it benefits Republican presidents as well as Democratic ones as well as helping create a more efficient judiciary. This is a solution that benefits all concerned, even if it does create a conflict at the outset.

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