Bench Memos

Law & the Courts

Larry Tribe Repudiates Larry Tribe on Senate Duty to Act on Supreme Court Nominee

Here’s a welcome, if very surprising, reversal:

1. Back in early March 2016, a few weeks after Justice Scalia’s death created a vacancy on the Supreme Court, Harvard law professor Laurence Tribe was perhaps the most prominent of some 350 law professors to sign a letter asserting that the Senate had a “constitutional duty to give President Barack Obama’s Supreme Court nominee a prompt and fair hearing and a timely vote.” Declaring that “[t]he Senate’s obligation in this circumstance is clear,” the letter invoked the Appointments Clause of the Constitution.

But, as I and others (including liberal law professors Noah Feldman and Vik Amar) pointed out at the time, the position that Tribe took had no support in the text of the Constitution and contradicted perennial Senate practice on nominations. The Appointments Clause states only that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint” various executive-branch and judicial-branch officers. In other words, it restricts the president’s power of appointment by conditioning any such appointment on prior receipt of the Senate’s “Advice and Consent” on a nomination. But 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.

Tribe’s position in March 2016 further surprised me because it contradicted Tribe’s own earlier (correct) recognition, in his 1985 book God Save This Honorable Court, that the Senate may block a Supreme Court nomination “by simply refusing to act upon it.”

2. I’m pleased to discover that Tribe now agrees that the Senate does not have a constitutional duty to take any action on a Supreme Court nominee.

Yesterday I was reading through an essay by Tribe and Joshua Matz that responded to a review of their jointly authored book To End a Presidency: The Power of Impeachment, published in May 2018. In that review, I ran across their statement (p. 97) that in their book they opened their analysis of the power of impeachment “by considering—and squarely rejecting—arguments that the Senate violated the Appointments Clause of the Constitution when it declined to hold confirmation hearings for Chief Judge Garland.” Wondering if Tribe had really reversed himself or whether I was somehow misreading that statement, I found confirmation in their book (well, in Amazon’s free preview pages of their book):

In the period between Scalia’s death and Trump’s electoral victory, some [sic] argued that the Senate was violating Article II, Section 2 of the Constitution by refusing to consider Garland’s nomination…. But we’re skeptical that the Senate violated the Constitution. While Article II, Section 2 requires Senate consent in order for a judicial nominee to be confirmed [sic*], it doesn’t impose an affirmative duty on the Senate to take specific actions when presented with a nominee—much less to do so within a particular time frame. [P. 76 (my underlining).]

For support, they even cite law professor Michael D. Ramsey’s fine Atlantic article on the matter. So I’m glad that Tribe’s second 180-degree turn has brought him back to the right place, where he was three decades ago.

Perhaps it’s too much to wish that Tribe and Matz had candidly acknowledged that Tribe (along with several hundred law professors) was among the “some” who, in the midst of the battle three years ago, argued the wrong position.

* The word “confirmed” should instead be “appointed.” Senate confirmation and Senate consent are synonymous. The Senate’s confirmation of the nomination is a condition that must be satisfied before the president can make the final act of appointment.

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