They went and did it. The Republican members of the Senate Judiciary Committee took the dive, wrote a letter and signed their names to it. It’s now in writing for all to see.
The President of the United States of America is empowered to appoint someone to be a justice of the Supreme Court. He hasn’t done so, but the Senate Judiciary Committee, which by the Senate’s rules would conduct hearings into the person’s qualifications to hold the position, before a vote by the full Senate to confirm or not, has taken a stance. It will not hold hearings. No matter whom the president appoints, it will not hold hearings. They will not consider the person appointed by the president.
There is no question that the Senate has the authority to not confirm the president’s choice. The appointments clause confers that authority on the Senate. They can reject the nominee for good reason, bad reason or no reason. There is no mechanism in the Constitution to compel the Senate to act upon the nomination, and indeed, the Senate has a sordid history of not acting.
But this is unprecedented. Those who fear any nominee from the sitting president will argue vehemently that the survival of our nation depends on the boldness of this action. They will applaud the Senate Republicans for placing their signatures on this letter, for putting the will of the public first.
They will ignore that the election of the president is the will of the public. They will repeat the lie that lame duck presidents don’t get to appoint justices. They will scream that the president is the worst ever and will destroy civilization as we know it. We’ve all heard it. We know it to be nonsense, and so won’t waste time repeating worn arguments.
But did this letter overplay the Senate Judiciary Committee’s hand? While the Senate can refuse to confirm an appointment, is there not an implicit good faith requirement to the function of advise and consent? And if a branch of government announces, in advance, that it refuses to perform a function required of it by the Constitution, are they doing the business of government? Are they open for business, when they proclaim in advance that the doors are closed?
It doesn’t matter why Grassley says his committee refuses to do the business of government. He can give a good reason or a bad one. He can spin a lie or tell the truth. He can believe in the righteousness of his decision or play the most banal of politics. The only thing that counts is that there is a job to do and Grassley, with his cohorts, have publicly proclaimed that they won’t do it. No way. No how. Ain’t happening.
All of which raises a rather interesting question. If the Senate refuses to perform its constitutional function, without regard to anything beyond the lack of any mechanism to compel it to do its function, is it transacting business?
While the decision isn’t analogous (and despite non-lawyers referring to it without grasping that it isn’t analogous), the NLRB v. Noel Canning decision is one of the few to provide any guidance on the recess appointments clause.
There is a great deal of history to consider here. Presidents have made recess appointments since the beginning of the Republic. Their frequency suggests that the Senate and President have recognized that recess appointments can be both necessary and appropriate in certain circumstances. We have not previously interpreted the Clause, and, when doing so for the first time in more than 200 years, we must hesitate to upset the compromises and working arrangements that the elected branches of Government themselves have reached.
This is a peculiar statement, as one that reveals the odd relationship between the reasoned world of law and the world of politics, where there is no requirement for reason. In this instance, the Grassley letter is not a historic compromise and working relationship that has been reached between the Executive and Legislative branches. The anticipatory repudiation is both unique and unilateral.
Beyond this, Canning does little to inform us what the Judiciary Committee’s letter means. Tension between the branches of government was a feature, not a flaw, of our system. The Senate is not merely allowed, but expected, to challenge the Executive’s assertion of power. That’s the nature of checks and balances.
But this isn’t mere tension. The Senate has a big “open for business” sign on the front door, but the door is locked. The sign is a lie. The Judiciary Committee has announced that it understands it has a job to do, and that it will not do it. No matter whom the president nominates, they will not be considered, they will get no hearing.
Can the Judiciary Committee claim it’s open to transact the nation’s business after announcing that it won’t? Is this a good faith position to take? Is there a good faith element to the conduct of government? There is no rubric by which to determine if that’s the case, and how to test it. But even without a test, the Grassley letter makes it irrefutably clear that the Senate Judiciary Committee will not act in good faith, will not consider anyone, anyone, no matter what.
For those obsessed with the outcome, the argument may be that because the Senate has the absolute authority to refuse to confirm a nominee, it shouldn’t matter what process is taken to reach rejection, even if it means that it can announce its refusal to perform its constitutional function.
To call this recess is to be unduly kind to the Judiciary Committee Republicans. This is a wholesale abdication of their duty to the Constitution and the people. The machinations of the political process are separate from the outcome, and while we can tolerate all manner of belief, the one thing our Constitution cannot tolerate is the anticipatory repudiation of good faith. That’s what they have done here.
The sign may say open, but the door is locked. The Senate Judiciary Committee is closed to the president. The letter says so, and the business of the nation must nonetheless proceed.