GOP SENATE TO OBAMA : DON'T BOTHER NOMINATING TO THE COURT

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33. The history of the advise and consent provision doesn't support your conclusion

The advise and consent provision has its origins in a similarly worded provision that was part of the Massachusetts constitution at the time of the Constitutional Convention. There were a number of competing proposals for how members of the judiciary should be appointed. For example, some proposals called for the legislature to appoint members of the judiciary. Others proposed that judicial nominations be made by the executive but with an "advisory" council. Yet others -- and this was one of the most popular options - was for the executive to nominate judges who would take office unless the Senate exercised a discretionary "veto" power over the nomination by affirmatively rejecting it.

Ultimately, however, the framers opted for the Massachusetts style advise and consent which was non-mandatory -- there is no obligation (no "shall" as it were) -- for the Senate to do anything if it doesn't want to consent to a nomination. It can sit on its hands. What keeps them from doing so in most instances is political pressure. And that, not any sort of legal proceeding, will determine whether and to what extent the Senate engages in a review of Obama's nominee.

The advise and consent clause is not limited to SCOTUS nominations. It applies to all sorts of nominations. And there have been numerous instances throughout history of the Senate receiving a nomination from a President and essentially putting it on a shelf.

No court will ever direct the Senate in how to conduct its business in this regard.