Although a few Senate Republicans have recently agreed to meet with Chief Judge Merrick B. Garland, President Obama's nominee to fill the vacancy on the Supreme Court, Majority Leader Mitch McConnell and his fellow GOP leaders show little sign of modifying their stance that no nominee should be considered, let alone voted upon, before November's presidential election.

But does the Senate's vote--or lack thereof--matter? What does Article II mean, exactly, by “Advice and Consent”? What would happen if Chief Judge Garland, despite no Senate vote, pulled a “Reverse Bartleby” and took a seat on the bench in October at the start of the new Term?

In his Volume 122 Essay, Can the President Appoint Principal Executive Officers Without a Senate Confirmation Vote?, Matthew C. Stephenson challenges the “widespread, seemingly unquestioned assumption . . . that the Constitution requires the Senate to vote to confirm the President’s nominee before the appointee may take office on a permanent basis.” Professor Stephenson argues instead that “the Constitution can and should be read to construe Senate inaction on a nominee as implied consent to the appointment, at least under some circumstances” (emphasis added).

However, Professor Stephenson declines to extend his proposal to Article III judges. “[F]or judicial appointments,” he writes, “it would make more sense to read ‘Advice and Consent’ as requiring an affirmative confirmation vote.” 

Preferred Citation: Matthew C. Stephenson, Can the President Appoint Principal Executive Officers Without a Senate Confirmation Vote?, 122 Yale L.J. 940 (2013).