Is “Ignore” A Constitutional Option? (Update)

One duty of the president is to nominate individuals to the federal judiciary, including the Supreme Court.  The appointment clause in the Constitution, Article II, §2, cl. 2, makes the process remarkably clear unfortunately opaque.

[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, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

That the president “shall” nominate is pretty clear. That it shall be “by and with the Advice and Consent of the Senate” is where things get cloudy. There is a dearth of law* on the issue, and general views seem to be governed more by political expediency than anything else.  The arguments of the teams are entirely unprincipled and designed to screw the other team. Each team’s cheering section is trying to out-cheer the other.

As noted with Justice Antonin Scalia’s passing, Republicans almost instantaneously started a public relations campaign to create public confusion and antipathy toward a nomination by President Obama. If you are conservative or Republican, you will likely agree with Senate Majority Leader Mitch McConnell’s and Judiciary Chair Chuck Grassley’s pitch. If you are liberal or Democrat, you won’t. If you are principled, you’re on your own.

The problem with the Constitution’s Appointment Clause is that, while it provides for a duty on the Senate to provide “advice and consent” on the president’s appointments, it presumes the Senate will perform its duty.  In other words, there is no mechanism for the Senate to fail to fulfill its constitutional mandate.  It can confirm a nominee. It can advise the president that it does not approve of a nominee.  Doing nothing, however, is not one of the options provided in the Constitution.

Except that there is nothing to be done to compel the Senate to perform its constitutional duty.**

If you need an example, consider the number of federal judicial nominees whose appointments have been hung up forever.  They exist in limbo as the Senate either refuses to hold hearings or take a vote on their appointment, or holds their nominations hostage to other causes. The federal judiciary is grossly understaffed, but there is nothing to be done about it.

Could there be? Perhaps. If a branch of government was on the verge of failure because of the inaction of another branch, it might compel a constitutional crisis of significant enough proportions to give rise to a cause of action that overcomes the political question doctrine. But then, the resolution would be in the courts, which makes any resolution circular.

While the Supreme Court’s recent holding in NLRB v. Canning, dealing with presidential authority to make recess appointments, fails to resolve the duty of the Senate to act, it does recognize the problem.

The Court, in interpreting the Clause for the first time, must hesitate to upset the compromises and working arrangements that the elected branches of Government themselves have reached.

In other words, the Supreme Court won’t stick its nose in the middle of a dispute between the other branches of government, or to upset historical “compromises and working arrangements” in interpreting the scope of constitutional authority. Ironically, Justice Scalia, in a concurrence, challenges the majority’s foggy holding that the failure in Canning is that the recess was too short, a mere three days.

The majority justifies those atextual results on an adverse-possession theory of executive authority: Presidents have long claimed the powers in question, and the Senate has not disputed those claims with sufficient vigor, so the Court should not “upset the compromises and working arrangements that the elected branches of Government themselves have reached.”

The Court’s decision transforms the recess-appointment power from a tool carefully designed to fill a narrow and specific need into a weapon to be wielded by future Presidents against future Senates. To reach that result, the majority casts aside the plain, original meaning of the constitutional text in deference to late-arising historical practices that are ambiguous at best. The majority’s insistence on deferring to the Executive’s untenably broad interpretation of the power is in clear conflict with our precedent and forebodes a diminution of this Court’s role in controversies involving the separation of powers and the structure of government.

The problem here is the opposite, that the Senate’s “advice and consent” power is being wielded as a weapon against future presidents rather than “a tool carefully designed” to serve a specific constitutional function.

That this affects not just this particular instance, but all future presidents, is a point missed by political partisans. For those who don’t want President Obama’s appointee on the Supreme Court, they favor today’s claims that there is something wrong about a president exercising his power and constitutional duty to nominate a justice in the final year of his term. When the political power shifts, so will the sides in the argument.

There is nothing controversial about the president performing his duty to nominate a justice in the final year of his term of office. He was elected for four years, and the “voice of the people” clearly supports his doing his job until the next president is sworn in. The response is that Senators were elected too, and they too have a duty to reflect the voice of the people. The populist appeal of this is obvious. Its legal merit, not so much.

The distinction here is that the Senate’s constitutional duty isn’t empty rhetorical arguments guided by political outcomes, but to “advise and consent.” They can vote a nominee up. They can vote a nominee down. The Constitution anticipates that the Senators will do their duty. The Constitution offers no “ignore” option, where the Senate can refuse to do anything in order to tie up a nomination they prefer not to decide because the president is from a different political party than the majority of the Senate.

Thus, the distinction is between the Senate performing its constitutional duty and choosing not to because there is nothing the president can do to make it.  The former is the only constitutionally principled duty. The latter can be done with impunity, but cannot be justified by the Constitution. Whether that’s a flaw or a feature is determined by which side of the argument you’re on at any given moment.

And before you pretend otherwise, bear in mind that when the tides turn, political partisanship turns with them. Whatever you passionately demand today based upon how much you love/hate a political perspective will come back to bite you in the ass eventually. That’s the difference between unprincipled politics and principled law. Or as the New York Times calls it:

Senators are free to vote yes or no on any nominee. But not to vote at all is an enormous insult and grave disservice to millions of Americans awaiting justice.

Of course, the Times has a horse in the race, so its opinion is easily dismissed. I, on the other hand, don’t favor any potential nominator, so there.

Update: Josh Blackman has taken up the cause at National Review, where he asserts that the Senate is not merely able to do nothing but finds authority in Noel Canning.

*A twitterer pointed to a 1998(?) student note in the NYU Law Review on the issue of the Senate’s failure to perform its constitutional duty, but it offers little in support of its position.

**A fundamental precept of law is that for an issue to be justiciable, there must be a right, a writ and a remedy. To non-lawyers, this might appear to be unduly nuanced, but to lawyers, it’s critical. The Senate may have no right to refuse to advise and consent, but if there is no remedy for its failure to do so, there is nothing to be done about it. It doesn’t make it right; it does put it beyond the reach of a fix.

48 thoughts on “Is “Ignore” A Constitutional Option? (Update)

  1. Bartleby the Scrivener

    While I tend to agree with you, I’m curious about whether or not the Senate has discretion in how and when it exercises its duties. My gut says it’s murkier than Executive discretion, but that same gut also doubts it is without precedent.

    1. SHG Post author

      Of course the Senate has discretion, and it must as an independent branch of government. It doesn’t change the duty, but there’s tons of murk within which to screw with it. The point is that those who deny that there is a duty are unprincipled, not that they can’t find holes in which to hide.

      1. Bartleby the Scrivener

        Oh, I agree with you. I just wasn’t sure if there was legal basis to them having discretion or if there was legislation saying, “The Senate shall” instead of “The Senate may”.

        Sorry if I was unclear.

    2. James Matson

      If the President nominates a Supreme Court justice, and the Senate takes no action until the nomination lapses (I think that’s 30 days after the nomination), then why shouldn’t the President take the issue to Court on the theory that the Senate has WAIVED its “advice and consent” rights? If the Constitution is to be interpreted and enforced as if it was intended to have actual effect in all circumstances, including in the event of obstinate inaction on the part of the Senate, the courts should be asked to give us an answer. Is “advice and consent” a duty or right? The Senate is not not acting as if it were a duty. They seem to believe they’re empowered to do nothing if that’s their choice. If “advice and consent” is a right, it’s something that can be waived. Senate Republicans have the right to formally disapprove of a nominee, for any reason or no reason at all. But the Constitution requires that they formally act, as a body, and be accountable as the people’s representatives, IMHO. The President should sue as soon as the nomination lapses and try to obtain a judicial determination that his nominee is approved because the Senate has waived its constitutional “advice and consent” rights.

      1. SHG Post author

        This is America. Of course the president can sue, and he should. What he can’t do is act unilaterally, but sue? Absolutely.

        1. SHG Post author

          I’m not aware of there being any time frame after which a nomination lapses, but let’s not get hung up in extraneous details.

  2. Marc Whipple

    It is amusing to note that many of the same people who are getting worked up about the Sentate’s blatant dereliction of its plain duty to advise and consent are also perfectly okay with the President failing to faithfully execute the law. If the President doesn’t have to, they don’t have to. In fact, one could argue that ignoring is simply a particularly rude and childish way to withhold consent, whereas there really is no wiggle room in a mandate to faithfully execute the law. A pox on both their houses.

      1. Keith

        If you are principled, you’re on your own.
        One need not be a textualist to believe in the notion that “nominate” and “advice and consent” don’t mean the same things. The Senate is usurping the power of the executive if they think the President doesn’t get to make the pick and have a vote on the nominee. But the ability to force them to do the ‘right thing’ is an election for their seat, not a justiciable remedy. God help us. It’s is a Republic — but only if you can keep it.

        And before you pretend otherwise, bear in mind that when the tides turn, political partisanship turns with them.

        As has been noted elsewhere, the shoe was already on the wrong foot back in the 60’s:

          1. Keith

            while it provides for a duty on the Senate to provide “advice and consent” on the president’s appointments, it presumes the Senate will perform its duty

            I’m curious what your thoughts are to the position put forward by Josh Blackman & Michael Cannon, et al. Namely, that the process is a partisan gauntlet and since Congress is within their power to change the number of Justices from 9 to 8, that they are under no obligation to proceed at all — and this is a feature, not a bug in the system. Therefore, not acting is also performing their duty.

            After all, if they can effectively eliminate the ability of the President to name a successor to Scalia’s seat for purely partisan reasons, why can’t they say no vote will be had?

            1. SHG Post author

              How well has it gone in the past when people write, “I’m curious…”? Doesn’t anyone care about George Santayana anymore?

              That said, their arguments are sloppy and political, not legal. Comparing the ability to dictate the number of justices with the advice and consent duty is mixing apples and Chevys. Same with the arg that a filibuster is the same as refusing to vote. Or that because Schumer is an unprincipled sack of shit, it means that Republicans are allowed to be unprincipled sacks of shit too. Each has its own rationale, justification and place within the scheme of governance. If inapt analogy is the best you got, you got nothing.

    1. Dennis G Davis

      Marc, the congress passes laws – unfunded mandates – that the executive branch cannot enforce without appropriations. This is the case with deporting the 11 million illegal immigrants present in the US. Sure the law is there to deport them, but Congress will not appropriate the necessary funds in order to do the job (basically they do not want to raise the revenue necessary to do the job). In this and many other examples it is not the executive branch that is the origin of the problem but the Congress.

  3. Tom

    I don’t think the effect on all future presidents is lost on partisans. I think they believe this time in history is especially important.

  4. John Barleycorn

    What was it the fearless Chief of the Supreme Shepherds, from the least dangerous branch, said about split decisions a while back?

    I wonder if the thought of regular deadlock from his Supreme Shepherds will scare him so, that he will be forced to send out a battalion or two of eagle scouts to whisper in the ears of the branch with the purse, about how they should just let the branch with the sword do its thing, or the Supreme Shepherds will start to look even more silly when their final say starts regularly bouncing back to the best in show from the regional circus circuits popsicle stick craft fairs?

    P.S. No Denny Crane on The Court Supreme with this post? Such a shame…

    Denny Crane: It’s our time, in The Great Hall, in front of the highest court in the country. Maybe the world. Be respectful, but kick ass. Be Alan Shore for all you’re worth. And you know how they start these sessions? This clerk, this really pretty woman, she says, “Oh yes. Oh yes! Oh yes!” It’s like sex, Alan!

    Alan Shore: It’s not, “Oh yes.” It’s, “Oyez.”

    Denny Crane: What?

    Alan Shore: Oyez.

  5. David M.

    Trigger warning: stupid question ahead

    Instead of stalling, can’t the Senate just vote not to confirm every candidate Obama puts forward? Every candidate they find unpalatable, anyway.

    1. SHG Post author

      Absolutely. Ted Cruz is already stating publicly that he will vote down anyone President Obama nominates. Though, it would seem a bit less whorish if he waited until someone was nominated to announce his vote.

  6. Sgt. Schultz

    If I had read Josh Blackman’s post without reading yours, I probably would have found him persuasive. But I didn’t, and now think Josh equates not confirming with refusing to consider a nomination, which though nuanced, is still a very different thing. Unless someone points out the distinction, it’s very easy to blur lines. But once pointed out, the difference is obvious.

    1. SHG Post author

      I thought Josh kinda leaped over the difference I raise here, a duty v. getting away with it. He’s usually quite fastidious with words, so it was surprising that he was so loosey-goosey.

  7. Mike G.

    I know the Senate is supposed to do their constitutional duty if the President puts forth a slate of nominees and vote yea or nay.

    But it seems like the shoe is on the other foot now. Your fine Senator from NY, Chuckie Schumer said back when G.W. Bush was President and the Democrats controlled the Senate, not to confirm any of his choices…I believe this was in ’06 or ’07? It’s been 76 years since a lame duck President appointed a SCJ.

    The current President fillibustered Bush’s nominee when he was a freshman Senator. I reckon what’s good for the goose…?

    1. SHG Post author

      That’s the difference between principle and scum. Just because the other team is scum doesn’t make it okay for your team to be scum too.

        1. SHG Post author

          No one said it was easy to be principled, but that’s what distinguishes principled people from scum. You can’t be scum and blame it on anyone else. It’s your choice, just as it’s theirs.

    2. Mike C.

      Although this makes me less principled than I’d like to pretend to be, my affiliation constrains me to observe that Bush did manage to appoint both Roberts and Alito despite those partisan statements. So, the Democratic-controlled Senate did it’s job, in spite of its ideological preference. And – considering the gander in this scenario would presumably benefit from the Mirror-Mirror ideological opposite of Alito – I would like some sauce please.

      Also, given that Anthony Kennedy got his seat in Reagan’s lame-duck in 1988, you’re mistaken about the length of time since a final-year President has “appointed” a Supreme Court Justice. I emphasize “appoint” because there’s been a lot of distinction-without-meaningful-difference parsing of nominate and confirm…

      1. Mike C.

        All of which should not suggest that I think the Democratic Party is objectively a bastion of fidelity to the law and logical consistency.

        I do think, however, that the potential refusal to consider a nominee is an unprecedented break with the requirements of Constitution and a poor reaction to the Republican/conservative ideological branch of American government having the bad luck to lose an aligned Justice when the other party holds the White House. The appropriate response would probably be a shrug and a “them’s the breaks.” Of course, that’s with the shoe on the left foot.

  8. Turk

    You notice that the NY high court doesn’t have these problems. Why? ( for others listening in). Term limits.

    They fight because the judges are now living much longer and presidents are trying to put in people in SCOTUS still in their 40s.

    Term limits not only gives more turnover (and therefore less importantance to each) but opens the field to great judges in their 50s and 60s.

    And it does not benefit or hurt either “side.,

    1. SHG Post author

      That’s certainly true. Life tenure gives rise to some perverse incentives. On the other hand, it provides some benefits as well. The question is where, along the spectrum of trade-offs, we would achieve the best balance. That’s a harder question.

      1. Turk

        When they put me in charge….I fill SCOTUS seats from the courts of appeals — for 14 years and return them there when their time is up. And likewise fill empty seats from refusals by lottery from non-involved circuits.

        When they put me in charge….

        1. SHG Post author

          Next November, there will be a referendum on who should be put in charge. You may want to consider becoming involved to see how your idea flies. You never know.

  9. Pingback: Grassley’s Anticipatory Repudiation | Simple Justice

  10. Dave Moog

    Has anyone asked what “Advice and Consent” actually means in the context of the present refusal to do either. Doesn’t the Senate have the right to advise or not advise and the right to consent or to waive that right of consent. It seems to me that if the Senate Judicial Committee refuses to advise and the Senate waives it right by not even considering vote to consent (or vote down a nominee) that the nominee should go forward and be installed on the bench. Anyone or any body has the right to waive powers given to them and in this case the Senate is waiving its right to the power of Advice and Consent.

    1. SHG Post author

      An interesting interpretation, albeit without any legal authority, but it would be hard to suggest this was a knowing, voluntary and intelligent relinquishment of authority given that the express purpose is to prevent the confirmation of a nominee.

      1. Dave Moog

        If the Senate’s desire is to deny confirmation then they need to provide advice and vote to reject the confirmation.

    2. Mike C.

      This had occurred to me to. I think the “by and with” clause before “advice and consent” suggests that they’re two different things.

      However, since we’re in uncharted waters, it might be fun* for the President to nominate an individual for the vacant seat, wait 30 days or so for the Senate to act on his nomination, and – assuming they do nothing – issue an executive order appointing the individual as a Supreme Court Justice, noting that the Senate has declined to take the opportunity afforded to them by the Constitution to advise and consent with respect to his nomination. After all, the Senate consents, they don’t approve. While I wouldn’t want to make the argument in all contexts (just to be clear), I think there’s a colorable argument that consent means permission – and so by doing nothing, the Senate has permitted the President to confirm his appointee.

      Of course, this would be subject to a legal challenge in a hot second. However, that would force the Senate to act, as opposed to ignoring the matter. This, in turn, could resolve the issue of how ignoring squares with the Constitution. And, of course, it would ultimately wind up before the 4-4 SCOTUS…

      * – And by “fun” I mean giggling crazily in anticipation of living in a post-apocalyptic Mad Max hellscape while our government collapses upon itself .

      1. SHG Post author

        After all, the Senate consents, they don’t approve. While I wouldn’t want to make the argument in all contexts (just to be clear), I think there’s a colorable argument that consent means permission.

        What does this mean? I haven’t the slightest clue.

        1. Mike C.

          It means that the Senate’s power need not be exercised affirmatively, it can be exercised passively. Sure, typically the Senate votes to confirm a nominee or not. However, if the Senate refuses to act, they’re not only refusing to confirm, they’re refusing to reject. So, basically, they’ve permitted the nomination to proceed to confirmation by not taking action.

          Basically, if the Constitution required the Senate to approve a confirmation (which is the way it’s always been done in pratice), you might expect it to read “by and with the Advice and Approval of the Senate” and not “Advice and Consent.” Consent suggests something less than an affirmative show of support.

          1. Keith

            SCOTUS nominations being subsumed by an argument on affirmative consent. I feel like I’m through the looking glass.

            1. Dave Moog

              I am glad that my idea was not totally out of line and does have legs to stand on. I vote that we call it “The Moog Option”

            2. Patrick Maupin

              Exactly. All the SJWs who have moved past “no means no” to “yes means yes” will now have to backtrack to get what they want.

            3. Mike C.

              If you can’t differentiate sex from statutory interpretation, I think you’re probably doing both wrong. Or, possibly, you’re really, really good at statutory interpretation…

  11. Peter Osinski

    I believe that there is good to reason to interpret the Republican Senate leaders refusal to consider any Obama Supreme Court nominee constitute their waiver of their right to advise an consent. As such the President should proceed to directly appoint a new jusitce given the Senates officially stated abdication of their advise and consent role in this case.

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