Bench Memos

Law & the Courts

Erwin Chemerinsky’s ‘Silly’ and ‘Obviously Fatuous’ Posturing—Part 2

Back in March, Erwin Chemerinsky signed his name to a law professors’ letter claiming that the Senate has a “constitutional duty to give President Obama’s Supreme Court nominee a prompt and fair hearing and a timely vote.” As I discuss in my Part 1 post, he restated that position at an Appellate Judges Education Institute conference last week. I will explain in this post why I find it impossible to believe that Chemerinsky, of all people, could actually believe the claim he is advancing (unless, to repeat my reservation from Part 1, his intellect has been utterly besotted by his partisanship).

1. Chemerinsky’s newfound position is that every Supreme Court nominee is entitled to an up-or-down confirmation vote. (That’s the clear import of the March letter he signed, and Chemerinsky confirmed that understanding in his April op-edSenate’s duty to vote on Garland for court”: “Yet, [contrary to Chereminsky’s constitutional claim,] it now is clear that the Senate Judiciary Committee will not hold hearings on Judge Garland’s nomination and the Senate will not conduct a vote on his confirmation until after the November 2016 election.”)

But back in 2005, Chemerinsky and his wife, Catherine Fisk, co-authored a law-review article, “In Defense of Filibustering Judicial Nominations,” that defended the propriety of filibustering judicial nominations, including Supreme Court nominations, and thus depriving nominees of final votes on their nominations. Far from having any constitutional concerns about preventing a final vote on a Supreme Court nominee, Chemerinsky emphasized that the filibuster “is just another check that exists within an overall process that is filled with checks and balances.” Indeed, he warned:

If Republicans succeed in eliminating the filibuster for judicial nominations, there will be literally no check on who President Bush can put on the Supreme Court and the lower federal courts.

Further, in January 2006 Chemerinsky wrote that “Democrats must filibuster to block the nomination of Samuel Alito for the United States Supreme Court.” (Chemerinsky, Democrats Must Use the Filibuster to Block Alito, The Herald-Sun (Durham, NC), Jan. 29, 2006.)

That’s right: The same Chemerinsky who now claims that the Senate has a constitutional duty to have a final up-or-down vote on a Supreme Court nomination urged Senate Democrats to filibuster the Alito nomination in order to prevent a final up-or-down vote on that Supreme Court nomination.

2. The case for the Senate’s power to block Supreme Court nominees by inaction is simple. As liberal law professor Laurence Tribe once observed: “The Senate has ways of blocking Supreme Court nominations other than by straightforward rejection in a confirmation vote.” To illustrate the obvious point, he cited an instance in which the Senate “killed” a nomination “by simply refusing to act upon it.” (Yes, Tribe somehow also signed his name to the March law professors’ letter. Whether Tribe out-Chemerinskyed Chemerinsky in doing so or whether Chemerinsky out-Tribed Tribe is a very difficult question.)

The March letter that Chemerinsky signed asserts that the Senate’s supposed obligation to hold a hearing and an up-or-down vote is somehow made “clear” by the Appointments Clause of the Constitution. But that assertion is absurd. As I and others have explained on multiple occasions all the way back to March:

– The Appointments Clause (Article II, section 2) restricts the president’s power to appoint executive-branch and judicial-branch officers by conditioning any such appointment on prior receipt of the Senate’s “Advice and Consent” on a nomination. It says nothing about how the Senate should go about exercising its power to advise and consent-or-withhold-consent, and it thus leaves the Senate entirely free to exercise that power however it sees fit. (Indeed, the Framers rejected the alternative of requiring the Senate to vote down a nomination in order to block it.) It also doesn’t require Senate hearings on anything. (It’s entirely through the operation of the Senate’s plenary rulemaking power that the Senate has committees at all and empowers those committees to hold hearings.)

– The Appointments Clause applies to Supreme Court nominations in exactly the same way that it applies to other presidential nominations. So anyone contending that the Appointments Clause somehow requires “a prompt and fair hearing and a timely vote” would have to maintain the same position for all nominations throughout American history. Senate practice has routinely defeated nominations by inaction.

3. In his April op-ed, Chemerinsky contends that the two uses of shall in the Appointments Clause were “intended to convey the obligation to fill vacancies in crucial government positions.” But this contention is, to borrow an epithet from Chemerinsky, “obviously fatuous.” Each shall applies only to the president (and, as I discuss in point 1 here, there’s also lots of reason to doubt that either shall imposes a duty). The Appointments Clause applies to trivial government positions that are subject to presidential appointment in exactly the same way that it applies to “crucial” ones.

4. Chemerinsky made this same argument based on shall at the AJEI event, but he later said that his position is ultimately really “nontextual.” (I’ll say!) If I recall correctly, he claimed (as he did in his April op-ed) that the Senate’s inaction improperly interferes with the functioning of the Supreme Court. So much for those “checks and balances” that he celebrated back in 2005. And never mind, as I discuss in point 1 here, that there were only four cases last Term in which the Court divided 4-4 and that such splits do not in any event create any serious problem.

Chemerinsky made another nontextual argument at AJEI, as he asserted that the Senate has a consistent history of always giving confirmation votes to nominations made in election years. That argument is factually wrong (the last two election-year nominations were obstructed by filibuster; see point 1 here). It doesn’t support Chemerinsky’s actual claim (which applies to all years, not just election years). And, as law professor Michael Ramsey has said of a similar argument, it invokes Senate practice not for the accepted purpose of “relax[ing] stricter separation of powers rules apparently imposed by the Constitution” but rather for the novel purpose of creat[ing] a constitutional limit that does not exist in the Constitution itself.”

5. What I also find scandalous about Chemerinsky’s April op-ed and his AJEI presentation is that he does not even acknowledge, much less try to explain away, his own previous support for the filibustering of Supreme Court nominees. Nor, so far as I’m aware, has he made any effort to respond in writing to the arguments against his position that Jonathan Adler, Michael Ramsey, and I have thoroughly presented. (He did have a podcast debate with Ramsey back in early April.) Is that the approach of a scholar?

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