By Andrew Hanson*

After refusing to hold hearings on the appointment of Merrick Garland, President Obama’s nominee to fill a Supreme Court vacancy—because “the people” should be able to decide who nominates the next Justice—Republicans recently suggested that they would continue to leave the Court with a vacancy if the people’s decision was Hillary Clinton. Now that Trump has won, they are likely to allow him to appoint the next Justice. But the vacancy occurred on Obama’s watch, and he still has time left in office. Can the Senate refrain from voting on a president’s Supreme Court nominee indefinitely? Perhaps not.

The president, “by and with the Advice and Consent of the Senate,” has the obligation to nominate and appoint judges to the Supreme Court. Historically, this has meant that the Senate will either approve or reject the nominee. However, it is unclear how to proceed when the Senate refuses to affirmatively approve or reject the nominee. Could consent be inferred from inaction?

In 2013, Harvard Law professor Matthew Stephenson suggested that, at least with regards to certain Executive Officers, the text and history of the Advice and Consent clause supports the argument that consent could be inferred if the Senate failed to expressly affirm or reject a presidential nominee. He appeared to exclude, for pragmatic reasons, this reading insofar as it applied to judges. I think his analysis is persuasive, but why not extend it to the appointment of judges?

Under Stephenson’s analysis, while the president cannot appoint an officer without “consent,” the president may be able to infer “consent” when the Senate fails to affirmatively reject the nominee. This reasoning, arguably, could apply with equal force to judicial appointments. In other words, where the Senate does not expressly reject the appointment of a judicial nominee for an indefinite period of time, the president should be allowed to infer implied consent and rely on his independent and exclusive power to take care that the laws be executed by appointing the judge. Some sort of notification to the Senate of the intent to pursue this course of action by a certain date would be prudent given professional courtesy and the rather radical nature of this proposal. I would not go so far as to say it is legally required, but rather a practical consideration. The Senate, of course, could prevent the seating of the nominee by holding a hearing and voting to reject the nominee prior to the date set by the president.

If one accepts Stephenson’s reading of the Advice and Consent clause, then there are two reasons why the president should be allowed to apply this “inferred consent” to judicial appointments. First, the president has the constitutional obligation to “take care that the laws be faithfully executed.” The Constitution gives the president the independent obligation to “nominate” judges and the obligation to “appoint” the judges with the advice and consent of the Senate. Second, federal law states the Supreme Court “shall consist of a Chief Justice of the United States and eight associate justices” (emphasis added). In order to take care that these laws be faithfully executed, the president has an obligation to see to it that the vacancy on the Court is filled. The Senate’s prolonged refusal to take any action fundamentally interferes with the president’s ability to achieve his constitutional obligations.

Under Justice Jackson’s famous categories of presidential power, this conduct would likely fall under category one. Under category one, when the president acts pursuant to an express or implied authorization by Congress, the president’s power is at its maximum. If the president’s conduct is unconstitutional, the federal government as a whole lacks the power to do what the president has done. Obviously, the government has the authority to fill vacancies in the judiciary. Thus, if prolonged inaction can be interpreted as implied consent, and the president also has his or her independent constitutional authority to rely on, then the president’s power to appoint the judge would appear to be at its maximum under such circumstances. Under this reading, Obama’s nominee, Merrick Garland, who has been waiting for a hearing since March, could just show up to work one day in the face of Senate inaction.

The Senate could, of course, hold a hearing and reject a nominee. This would put the facts into Jackson’s category three whereby the president would only be able to rely on his or her independent and exclusive authority—however, the Constitution textually requires the “consent” of the Senate for the appointment of judges. Thus, where the Senate has rejected a nominee, it has affirmatively not consented, and the president would be prohibited from appointing that nominee.

In the end, the president arguably has the authority—in fact, it may be at its maximum—to appoint a judge to fill the vacancy on the Supreme Court in the face of prolonged inaction by the Senate. I would say the failure to even consider the nominee for the last eight months counts as prolonged—indeed, unprecedented—inaction. In fact, the Garland nomination holds the record for the longest wait for a Senate hearing. This inaction arguably authorizes the president to fulfill his constitutional duties to appoint judges and take care that the federal law requiring nine Justices is faithfully executed.

Others have advocated forms of this argument to apply the “silence is consent” interpretation of the Advice and Consent clause to judicial appointments (see here, here, here, here, and here). As many of these other pieces point out, it would be a political and legal battle to actually move forward on this theory. There would be questions about whether any president would be willing to be the first to step out in this direction, whether the Chief Justice would allow it, and whether there would be suits challenging it (and if so, what courts would hear the issue or what would happen if there was a tie in the Supreme Court on the issue after the new Justice recused themselves). It may be the case that it is politically unlikely and legally complex, but that does not detract from the question of whether it is legally possible. I think it is. It may very well turn out that the Court agrees. Or, the Court may find the need for affirmative consent. But the bold act would bring the issue to the forefront of public discussion and help highlight the irony in the position of certain Senators. Perhaps it would incite enough public outrage to compel the Senate to take action—one way or the other—rather than sit on their hands and avoid their constitutional duties.

*Andrew Hanson is a 3L at Harvard Law School.