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.