Noah Feldman, Columnist

Obama and Republicans Are Both Wrong About Constitution

The first rule of replacing a Supreme Court justice is that there are no rules.

February 17, 2016 at 5:21 PM UTC

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People."

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What does the U.S. Constitution really have to say about whether the Senate must put a president’s Supreme Court nominee to a vote? President Barack Obama says the Constitution “is pretty clear on what happens next”: He nominates, and the Senate says yes or no in a timely fashion. Republicans think the Constitution gives the Senate the right, not just the power, to give the president’s nominee a hearing or to refuse to do so.

They’re both wrong. Here’s what the Constitution says about filling Supreme Court vacancies: nothing. In fact, the Constitution says nothing about the size of the Supreme Court at all. Congress could pass a law leaving the number of justices permanently at eight. Or it could expand the number to 23. All the Constitution requires is that there be a Supreme Court. Beyond that, we’re in the realm of politics.