Bench Memos

Law & the Courts

Another Feeble Argument About Senate Confirmation Role

The Left continues to generate all sorts of silly arguments that the Constitution somehow forbids Republican senators from taking various courses of action to prevent confirmation of a Democratic president’s Supreme Court nominee. The latest entry Ive seen is this piece by Ray Raphael on the History News Network website.

Raphael claims that, if Hillary Clinton becomes president, Senate Republicans would act unconstitutionally if they “pledge not to consider Clinton nominees.” I suppose that what he really means is that they would act unconstitutionally if they, having control of the Senate, carry through on such a pledge. Or perhaps he means only that such action would be unconstitutional if it causes the Court to “dwindle to five or six” members. Whatever his central claim is, his arguments don’t support it.

1. Raphael relies, first, on the fact that the Appointments Clause (Article II, section 2, clause 2) twice uses the word shall: the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint” various officers, including Supreme Court justices. Raphael argues that “this is both a grant of authority and an obligation.” And that sets this up:

If Republican Senators pledge not to consider Clinton nominees, the president would have absolutely no say in determining Supreme Court justices. Unilaterally, the Senate would deny the president an authority expressly granted to that office by the Constitution. True, that authority is not unconditional, but in this case the president would be bypassed entirely. That was not the intent of the framers, nor is it a reasonable reading of the text.

I’m really not sure what the argument here is. As Raphael recognizes, the president’s authority to “appoint” officers is contingent on his first obtaining the Senate’s “Advice and Consent.” How is the president “bypassed entirely” if she (to use the hypothetical President Hillary Clinton) makes a nomination that emboldens the Republican senators to carry through on their hypothetical (and all too retractable) pledge?

The word shall cannot possibly bear the weight that Raphael would seem to put on it. The Constitution also says that the president “shall hold his Office during the Term of four years.” Under Raphael’s apparent logic (if I’m discerning it correctly), that would mean that the president acts unconstitutionally if he resigns from office. The proposition that the president even has a duty to nominate all the officers to whom the Appointments Clause applies is a dubious one, and if such a duty exists, President Obama and other presidents have routinely violated it. That same understanding of shall would, I gather, mean that a president is constitutionally obligated, after the Senate confirms a nominee, to go ahead and appoint that nominee, even if, say, the nominee has in the meantime sworn himself to be a determined enemy of the president and his policies. So far as I’m aware, no serious person has ever made such a claim. (In Marbury v. Madison, Chief Justice Marshall calls the post-confirmation act of appointment a “voluntary act” of the president; in context, voluntary appears to mean discretionary rather than ministerial.)

It seems to me far more sensible, as law professor Seth Barrett Tillman argues, to understand shall in the context of the Appointments Clause to “merely [identify] who or which body would act in the future or be empowered to act in the future once the new Constitution … and government went into operation.” In other words, the Appointments Clause simply makes clear that it is the president—and not some other person or body—who shall nominate and, upon receipt of the Senate’s Advice and Consent, shall appoint various officers. [Addendum:] (But again, even if Raphael were right that shall imposes a duty on the president, his claim about the Senate’​s role does not remotely follow.)  

2. Raphael next invokes Article III, section 1, which confers on Congress the ability to determine the number of Supreme Court justices. Current law, he points out, provides for nine justices, “any six of whom shall constitute a quorum.” His claim, as I understand it, is that Republicans can’t hold a seat open without violating existing statutory law. But how could a statute restrict the Senate’s constitutional power to act as it sees fit on any particular nomination (Supreme Court or otherwise)? Is Raphael really arguing, contrary to history and practice, that the Senate has a duty to fill all statutory offices? If so, how quickly? And where does such a time limit come from?

3. Raphael argues, last, that if the Senate “ignore[s] categorically all [Supreme Court] nominees” (emphasis in original), it somehow prevents the president from fulfilling his constitutional duty “to take Care that the Laws be faithfully executed.” He premises this argument on the broader assertion that the “foundational role of the chief executive … is to secure the efficacy of government.”

What a strange notion that the president’s imagined duty “to secure the efficacy of government” somehow restricts the Senate’s exercise of its authority to deal with nominations, Supreme Court or otherwise, however it sees fit (including by the historically common means of inaction). So much for our system of separated powers, with its built-in checks (yes, inefficiencies) designed to prevent consolidated power. 

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