Bench Memos

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Re: Consultation


I noted a few months back that Judiciary Committee chairman Arlen Specter and Sen. Chuck Schumer have also urged the president to consult on judicial nominees. As I said back then, I don’t think it’s necessarily a bad idea. All the president would be doing is listening. It’s respectful to do so, he wouldn’t have to act on the advice, and you never know: He might learn some valuable information. Plus, it will serve the president politically to have done the reasonable and respectful thing if there is a filibuster down the road.

Nevertheless, if the president decides to consult, it should be made clear that he is choosing to do so in his discretion, not because he must do so to comply with the “advice” part of the appointments clause (Art. II, Sec. 2). The Constitution gives the president alone the power to “nominate,” limiting the “advice and consent” role of the Senate to the subsequent “appoint[ment]” of the nominee. There is no requirement to take advice from the Senate prior to making the nomination. As I’ve discussed before, lifting liberally from two great Americans, Alexander Hamilton and Mark Levin:

As Mark Levin has recently pointed out in his bestselling book, Men in Black (pp. 188-89), . . . in Federalist No. 66, [Hamilton] flatly asserted: “It will be the office of the President to nominate, and, with the advice and consent of the senate, to appoint. There will, of course, be no exertion of choice on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves choose–they can only ratify or reject the choice he may have made.” (Emphasis added.)
In Federalist No. 76, moreover, Hamilton offered an extensive explanation of the rationale, precluding any suggestion of a Senate role in nominations. The framers believed that reposing this power in the “sole and undivided responsibility of” a single official, the president, would “naturally beget a livelier sense of duty and a more exact regard for reputation” than could be achieved were the decision left to a committee. For them, a committee (such as the one Senator Schumer suggests) would only serve to multiply the number of “personal considerations” (as opposed to considerations of competence and fitness) that might result in poor choices.

Keeping with this theme of minimizing personal considerations, Hamilton also argued that because the power to nominate would be vested in the president alone, and because the senate would be limited to the power to overrule once the nomination was made, senators would realize that all they could achieve by overruling was yet another candidate of the president’s unilateral choosing. The idea–which has rich resonance today–was precisely to discourage the unreasonable withholding of consent, since the senators “could not assure themselves,” Hamilton wrote, “that the person they might wish would be brought forward by a second or by any subsequent nomination.”

Again, I don’t think this means the president should rule out consulting on nominations. It has for years been a fact of life that senators play an important role in choosing nominees for federal courts in their states, and, as a practical matter, the executive branch, the judiciary, and political parties are so big today that the president is effectively choosing his judicial nominees by committee (or, at the very least, with a lot of advice) anyway. Seems to me there’s no good reason why senators shouldn’t weigh in, too.

But the important point is that the president does not have to consult. This is an important principle to maintain. After all, saying he has to consult would only be a small step away from the next logical argument: namely, that the president should choose from among those candidates the senators recommend. There’s no chance the president (or, one would think, any president) would ever agree to such a thing, but the rules of the game should be clear from the start. It would be better for the president not to consult at all than to leave himself politically vulnerable to the claim that he had agreed that the next justice should be chosen by some bipartisan group of senators.


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