Bench Memos

Law & the Courts

Even Worse Than Biden

It’s quite an achievement to do worse than Joe Biden’s blatherings on the Senate’s role in confirming a Supreme Court justice, but Texas A&M law professor Meg Penrose, whose astounding confusions have caught my attention before, has pulled off the trick.

In an op-ed for the Austin American-Statesman, Penrose claims that an originalist approach to the Constitution compels the conclusion that the Senate is not entitled to “withhold all consideration” of a presidential nominee but must instead give “some form of consent, including, importantly, disapproval.” (If that last quote strikes you as nonsensical, just wait.)

Let’s run through Penrose’s comedy of errors:

1. Although she professes fidelity to the constitutional text, Penrose never manages to quote the actual language of the Appointments Clause (Art. II, section 2, cl. 2), which provides (in relevant part) that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.” (Emphasis added.)

What the Appointments Clause does (beyond conferring power on the president to nominate and appoint officers) is restrict the president’s power to appoint officers by conditioning any such appointment on prior receipt of the Senate’s “Advice and Consent” on a nomination. The Appointments Clause clearly implies a power on the part of the Senate to give advice on and, if it chooses to do so, to consent to a nomination, but it says nothing about how the Senate should go about exercising that power. The text of the Constitution thus leaves the Senate entirely free to exercise that power however it sees fit. 

2. Penrose contends that the Appointments Clause “explicitly state[s]” that “the Senate shall provide its advice and consent.” If it actually did so state, Penrose ought to be arguing that the Senate is obligated to confirm (to “provide its … consent” to) every nomination. That, of course, is an absurdity that she runs away from. But she does so by concocting the semantic monstrosity that “disapproval” is a “form of consent.” It’s that monstrosity that enables her to posit that the Appointments Clause allows the Senate to vote no on a nomination but supposedly doesn’t allow it to engage in “indeterminate inaction.”

3. Penrose provides no originalist evidence for her nontextual claim that the Appointments Clause does not allow the Senate to prevent a presidential appointment by engaging in “indeterminate inaction” on a nomination. Further, the one scholarly inquiry into the matter of which I’m aware—this law-review article by Adam J. White—draws exactly the opposite conclusion from the originalist evidence. Among other things, White shows that the Framers, in adopting the “Advice and Consent” language, rejected the alternative proposed by Madison of a discretionary Senate veto of nominations—which is exactly what Penrose tries to graft onto the Appointments Clause. As White summarizes his findings, the originalist evidence “does not support an assertion that the constitutional provision for advice and consent contains an implicit obligation [of the Senate] to act on the President’s nominations.”

4. Penrose doesn’t seem to understand that, throughout the history of the Senate, it’s been routine for the Senate to block a presidential appointment by not taking any action on a nomination. It would be more tedious than enlightening to compile the list of thousands of such nominees. But take a look, if you wish, at what happened to so many of President George W. Bush’s judicial nominees in 2007 and 2008—no hearing, no floor action, nothing. (And, yes, as Penrose sometimes seems to recognize, it’s the same Appointments Clause that governs Supreme Court nominations, lower-court nominations, and executive-branch nominations.)

As I’ve noted, the Senate’s longstanding rules specifically provide that at any intersession recess or lengthy intrasession recess, the Senate shall return all pending nominations to the president.

5. In her baseless and one-sided slam on Senate Republicans, Penrose doesn’t even have the decency and fairness to call to her readers’ attention previous statements by Joe Biden and Harry Reid (see point 5 here) that emphatically reject her position.

6. Perhaps most outrageous is Penrose’s suggestion that Justice Scalia would have agreed with her position. I can hear him yelling to her now: “Are you nuts? Gi-dow-da-hea!

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