Advice and Contempt

According to the Constitution, the President of the United States has the power to appoint federal judges “by and with the Advice and Consent of the Senate.” President Obama’s recent attempts at appointment, however, have been met not with consent but with obstructionism.

Senate Republicans seem to have drawn a bright line of intransigence when it comes to considering Obama’s nominees: So far, they have blocked four out of five potential judges from confirmation by filibustering the motion to send nominees to the bunch, where a simple majority vote would allow for their confirmation. Harvard Law School Professor David J. Barron ’89, a former Crimson president and nominee to the U.S. Court of Appeals for the First Circuit who sat for his confirmation hearing yesterday, may become the latest casualty to this bullheadedness.

Members of the Senate have the constitutional prerogative to voice political concerns when deciding whether or not to confirm nominees. In fact, the history of nominations is marked with scores of failed attempts—Robert Bork, for example, never made it to the Supreme Court after liberals and civil rights activists campaigned against his confirmation. But in this instance, Senate Republicans have abused their filibustering power by deciding to categorically oppose any candidate Obama sends their way. Instead, Republicans ought to grant each nominee individual consideration and allow qualified, worthy candidates to face the simple majority confirmation vote the Constitution requires.

Barron is one of those worthy individuals. An experienced and respected law professor as well as a former federal official Barron has put in the time and proven the talent necessary to sit on the federal bench.  Obama recognized Barron and his work by appointing him acting assistant attorney general in the Department of Justice in 2009. Harvard Law School recognized him by naming him S. William Green Professor of Public Law in 2011. And Massachusetts Governor Deval Patrick recognized him by naming him to the Massachusetts Board of Higher Education and the Massachusetts State College Building Authority this fall.  It is time for the Senate to recognize Barron as well by confirming him to the First Circuit.

As Democratic majority leader Senator Harry Reid of Nevada said, “Appointing judges to fill vacant judicial seats is not court-packing. It’s a president’s right as well as his duty.” Just as it is Obama’s duty to send nominees to the Senate, it is the Senate’s duty to give his preferences due consideration.  Surely Senate Republicans may object to specific nominees based on aspects of their ideologies with which they take issue. But the Advice and Consent clause exists to give the Senate minority a voice, not a veto. We hope Republicans will recognize their obligation and allow Barron to make his way to the bench.