Can Congress establish a committee to provide a shortlist of Supreme Court nominee?

[David Hume]

The Constitution did not define the scope of advice and consent. Can Congress establish a committee to provide a shortlist of Supreme Court nominee?

This seems OK to me. The Senate give President advice by sending a shortlist for the President to choose from. This can also be interpret as consent. After all the Senate has the absolute power to vote down anyone not from the list. Some states do have such committees for state court justices.

[politicallefty]

This would upend many years of tradition in terms of advise, but I don't see any violation in the Constitution. I'm not sure if that would be sufficient in terms of consent. I suppose it's possible in theory.

[Fuzzy Bear]

This would upend many years of tradition in terms of advise, but I don't see any violation in the Constitution. I'm not sure if that would be sufficient in terms of consent. I suppose it's possible in theory.

It's one of those ideas that could happen but wouldn't go down well.

This suggestion made me think of the question of whether or not the Supreme Court could give the President advisory opinions.  This, I believe, was rejected by (I think) John Jay when Washington requested one, but I'm not sure that this would be expressly forbidden (although it does go against the idea of separation of powers).

[Donerail]

This would upend many years of tradition in terms of advise, but I don't see any violation in the Constitution. I'm not sure if that would be sufficient in terms of consent. I suppose it's possible in theory.

It is likely unconstitutional; the President has the power to "nominate" under the Appointments Clause. Requiring the President to pick from a short list of candidates encroaches on that power by transferring part of it to Congress. There are some existing statutes that limit the President's power in this manner, but they're limited to fairly unique positions (the Comptroller-General, which is housed within the legislative branch, and certain local D.C. judges). This Court has generally taken a broad view of the President's power in this area, so I'd expect it to be invalidated.

This suggestion made me think of the question of whether or not the Supreme Court could give the President advisory opinions.  This, I believe, was rejected by (I think) John Jay when Washington requested one, but I'm not sure that this would be expressly forbidden (although it does go against the idea of separation of powers).

The Constitutional bar on advisory opinions is traditionally found in the Article III "case or controversy" requirement — the courts are limited to deciding active cases.

[NewYorkExpress]

I'd argue that if a state constitution can allow a state legislature to do so to Gubernatorial appointees, the Federal Constitution can allow Congress to do so for a Presidential appointee if they so choose.

[politicallefty]

It is likely unconstitutional; the President has the power to "nominate" under the Appointments Clause. Requiring the President to pick from a short list of candidates encroaches on that power by transferring part of it to Congress. There are some existing statutes that limit the President's power in this manner, but they're limited to fairly unique positions (the Comptroller-General, which is housed within the legislative branch, and certain local D.C. judges). This Court has generally taken a broad view of the President's power in this area, so I'd expect it to be invalidated.

I'm not so sure. It probably depends on how it was structured. The President would still have the ability to nominate whoever he or she wants. This seems like a way to streamline the process by having certain individuals basically automatically confirmed if they are nominated. There's nothing forcing the President to nominate any of those preselected individuals.

[BGBC]

It is likely unconstitutional; the President has the power to "nominate" under the Appointments Clause. Requiring the President to pick from a short list of candidates encroaches on that power by transferring part of it to Congress. There are some existing statutes that limit the President's power in this manner, but they're limited to fairly unique positions (the Comptroller-General, which is housed within the legislative branch, and certain local D.C. judges). This Court has generally taken a broad view of the President's power in this area, so I'd expect it to be invalidated.

I'm not so sure. It probably depends on how it was structured. The President would still have the ability to nominate whoever he or she wants. This seems like a way to streamline the process by having certain individuals basically automatically confirmed if they are nominated. There's nothing forcing the President to nominate any of those preselected individuals.

You want the Senate to confirm judges before they've had a hearing, or even been nominated? Good luck with that..

[politicallefty]

It is likely unconstitutional; the President has the power to "nominate" under the Appointments Clause. Requiring the President to pick from a short list of candidates encroaches on that power by transferring part of it to Congress. There are some existing statutes that limit the President's power in this manner, but they're limited to fairly unique positions (the Comptroller-General, which is housed within the legislative branch, and certain local D.C. judges). This Court has generally taken a broad view of the President's power in this area, so I'd expect it to be invalidated.

I'm not so sure. It probably depends on how it was structured. The President would still have the ability to nominate whoever he or she wants. This seems like a way to streamline the process by having certain individuals basically automatically confirmed if they are nominated. There's nothing forcing the President to nominate any of those preselected individuals.

You want the Senate to confirm judges before they've had a hearing, or even been nominated? Good luck with that..

I wasn't taking a position. The question was whether or not such a proposal would be consistent with the Constitution. Depending on how it was setup, it seems like it would basically make the confirmation of certain nominees self-executing. The main reason I think it would be constitutional is that the Senate already has the power to reject any judicial nominee for whatever reason it sees fit. I do think there would probably have to be some Senate rule outlining a process like this or the Senate leaves itself open to issues regarding the latter part of "advice and consent".

Any changes I personally would like to see made to judicial nominations and the confirmation process would require a constitutional amendment.

[ibagli]

It is likely unconstitutional; the President has the power to "nominate" under the Appointments Clause. Requiring the President to pick from a short list of candidates encroaches on that power by transferring part of it to Congress. There are some existing statutes that limit the President's power in this manner, but they're limited to fairly unique positions (the Comptroller-General, which is housed within the legislative branch, and certain local D.C. judges). This Court has generally taken a broad view of the President's power in this area, so I'd expect it to be invalidated.

I'm not so sure. It probably depends on how it was structured. The President would still have the ability to nominate whoever he or she wants. This seems like a way to streamline the process by having certain individuals basically automatically confirmed if they are nominated. There's nothing forcing the President to nominate any of those preselected individuals.

You want the Senate to confirm judges before they've had a hearing, or even been nominated? Good luck with that..

Getting rid of the stupid hearings would be great. They've never once added anything useful or informed anyone's decision.

[BGBC]

It is likely unconstitutional; the President has the power to "nominate" under the Appointments Clause. Requiring the President to pick from a short list of candidates encroaches on that power by transferring part of it to Congress. There are some existing statutes that limit the President's power in this manner, but they're limited to fairly unique positions (the Comptroller-General, which is housed within the legislative branch, and certain local D.C. judges). This Court has generally taken a broad view of the President's power in this area, so I'd expect it to be invalidated.

I'm not so sure. It probably depends on how it was structured. The President would still have the ability to nominate whoever he or she wants. This seems like a way to streamline the process by having certain individuals basically automatically confirmed if they are nominated. There's nothing forcing the President to nominate any of those preselected individuals.

You want the Senate to confirm judges before they've had a hearing, or even been nominated? Good luck with that..

Getting rid of the stupid hearings would be great. They've never once added anything useful or informed anyone's decision.

Robert Bork and Brett Kavanaugh agree.

[politicallefty]

It is likely unconstitutional; the President has the power to "nominate" under the Appointments Clause. Requiring the President to pick from a short list of candidates encroaches on that power by transferring part of it to Congress. There are some existing statutes that limit the President's power in this manner, but they're limited to fairly unique positions (the Comptroller-General, which is housed within the legislative branch, and certain local D.C. judges). This Court has generally taken a broad view of the President's power in this area, so I'd expect it to be invalidated.

I'm not so sure. It probably depends on how it was structured. The President would still have the ability to nominate whoever he or she wants. This seems like a way to streamline the process by having certain individuals basically automatically confirmed if they are nominated. There's nothing forcing the President to nominate any of those preselected individuals.

You want the Senate to confirm judges before they've had a hearing, or even been nominated? Good luck with that..

Getting rid of the stupid hearings would be great. They've never once added anything useful or informed anyone's decision.

Robert Bork and Brett Kavanaugh agree.

The Senate would've just outright rejected Bork in 1987 like they did anyway. That was a Democratic Senate and he had bipartisan opposition. They knew who he was. Ted Kennedy took to the floor in a matter of minutes after Bork was announced as Reagan's pick. Kavanaugh was confirmed anyway and it's widely believed that him being nominated was the prerequisite for Kennedy being willing to retire.

[David Hume]

It is likely unconstitutional; the President has the power to "nominate" under the Appointments Clause. Requiring the President to pick from a short list of candidates encroaches on that power by transferring part of it to Congress. There are some existing statutes that limit the President's power in this manner, but they're limited to fairly unique positions (the Comptroller-General, which is housed within the legislative branch, and certain local D.C. judges). This Court has generally taken a broad view of the President's power in this area, so I'd expect it to be invalidated.

I'm not so sure. It probably depends on how it was structured. The President would still have the ability to nominate whoever he or she wants. This seems like a way to streamline the process by having certain individuals basically automatically confirmed if they are nominated. There's nothing forcing the President to nominate any of those preselected individuals.

You want the Senate to confirm judges before they've had a hearing, or even been nominated? Good luck with that..

Getting rid of the stupid hearings would be great. They've never once added anything useful or informed anyone's decision.

Robert Bork and Brett Kavanaugh agree.

The Senate would've just outright rejected Bork in 1987 like they did anyway. That was a Democratic Senate and he had bipartisan opposition. They knew who he was. Ted Kennedy took to the floor in a matter of minutes after Bork was announced as Reagan's pick. Kavanaugh was confirmed anyway and it's widely believed that him being nominated was the prerequisite for Kennedy being willing to retire.

Could you share your sources for this? From what I read, Kennedy did try to manage to get Kavanaugh onto the shortlist before he retired. And it's true that Kavanaugh is his favorite clerk. But the nomination was not decided until the last day, as power player were suspicious about how solid he is, and wanted to replace him with someone like Barrett.

[Vosem]

This would upend many years of tradition in terms of advise, but I don't see any violation in the Constitution. I'm not sure if that would be sufficient in terms of consent. I suppose it's possible in theory.

It's one of those ideas that could happen but wouldn't go down well.

This suggestion made me think of the question of whether or not the Supreme Court could give the President advisory opinions.  This, I believe, was rejected by (I think) John Jay when Washington requested one, but I'm not sure that this would be expressly forbidden (although it does go against the idea of separation of powers).

Yeah, this. Recently there have been a few judges, on both sides of the aisle (specifically, Michael S. Kanne and Robert B. King) who have unretired when Presidents have refused to appoint their successor of choice. And that makes sense: ultimately the nomination power belongs to the President and the President is incentivized to keep it that way by deliberately going along with recommendation schemes as little as possible.

[BGBC]

It is likely unconstitutional; the President has the power to "nominate" under the Appointments Clause. Requiring the President to pick from a short list of candidates encroaches on that power by transferring part of it to Congress. There are some existing statutes that limit the President's power in this manner, but they're limited to fairly unique positions (the Comptroller-General, which is housed within the legislative branch, and certain local D.C. judges). This Court has generally taken a broad view of the President's power in this area, so I'd expect it to be invalidated.

I'm not so sure. It probably depends on how it was structured. The President would still have the ability to nominate whoever he or she wants. This seems like a way to streamline the process by having certain individuals basically automatically confirmed if they are nominated. There's nothing forcing the President to nominate any of those preselected individuals.

You want the Senate to confirm judges before they've had a hearing, or even been nominated? Good luck with that..

Getting rid of the stupid hearings would be great. They've never once added anything useful or informed anyone's decision.

Robert Bork and Brett Kavanaugh agree.

The Senate would've just outright rejected Bork in 1987 like they did anyway. That was a Democratic Senate and he had bipartisan opposition. They knew who he was. Ted Kennedy took to the floor in a matter of minutes after Bork was announced as Reagan's pick. Kavanaugh was confirmed anyway and it's widely believed that him being nominated was the prerequisite for Kennedy being willing to retire.

Yes, Bork had immediate opposition (as did many other SCOTUS nominees that ended up passing) but to say his committee hearing (where he openly criticized Roe and laid out most of his views) had no influence on the final vote is patently absurd. And Kennedy preferring Kavanaugh as his successor has nothing to do with whether the Ford testimony at his hearing influenced the vote.

[Ferguson97]

I mean, if the Senate really wanted to be a pain in the ass, then all they need is 51 Senators to say "we will only vote YES on this list of nominees." What would be the legal mechanism to force them to vote yes on other nominees? But they couldn't stop the President from nominating someone else anyway.

[SInNYC]

You could make a case that this is effectively how RBG was selected.

[Utah Neolib]

I don’t see how this is unconstitutional if the President isn’t required to make a pick from the shortlist. Wouldn’t be this similar to the Congressional Budget Office making budget statistics?

[Del Tachi]

I'd argue that if a state constitution can allow a state legislature to do so to Gubernatorial appointees, the Federal Constitution can allow Congress to do so for a Presidential appointee if they so choose.

let the states decide

[Ferguson97]

I'd argue that if a state constitution can allow a state legislature to do so to Gubernatorial appointees, the Federal Constitution can allow Congress to do so for a Presidential appointee if they so choose.

let the states decide

...huh

[politicallefty]

Could you share your sources for this? From what I read, Kennedy did try to manage to get Kavanaugh onto the shortlist before he retired. And it's true that Kavanaugh is his favorite clerk. But the nomination was not decided until the last day, as power player were suspicious about how solid he is, and wanted to replace him with someone like Barrett.

That was probably a bit of an overstatement on my part. What you said is probably closer to the truth. I shouldn't have used the word "prerequisite", but it's certainly widely believed that Kennedy definitely wanted Kavanaugh to be his successor. I think Trump had his own reasons as well. Kavanaugh is highly deferential to presidential power. During the GWB years, the theory of the unitary executive was quite prevalent in conservative legal thought. There should be little doubt where Kavanaugh's stance lies. Trump couldn't care less about the social issues that reach the Court. He wanted Justices that would uphold presidential power as much as possible.

Yes, Bork had immediate opposition (as did many other SCOTUS nominees that ended up passing) but to say his committee hearing (where he openly criticized Roe and laid out most of his views) had no influence on the final vote is patently absurd. And Kennedy preferring Kavanaugh as his successor has nothing to do with whether the Ford testimony at his hearing influenced the vote.

My point about Bork is with respect the topic at question. He never would've been part of the preapproved list under a Democratic Senate. (You also have to consider that he was part of the Saturday Night Massacre.) With Kavanaugh, the testimony proved to be irrelevant in the end. He was confirmed. The only thing that might have changed was the vote margin, but it's also worth noting that his confirmation moved the median seat on the Court from Kennedy to Roberts.