Grassley’s Anticipatory Repudiation

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.



34 thoughts on “Grassley’s Anticipatory Repudiation

  1. Jay

    Having argued a Writ of Mandamus or two in my time, I would hope that will be the president’s response. If the senate has a duty to give an up or down vote, then the writ ought to lie. It’s an emergency writ, and should be able to get before SCOTUS quickly. Let’s see what CJ Roberts, Kennedy, and Thomas think of this. Only Alito strikes me as too much of a panderer to be expected to hold Republicans accountable. But who knows. Judges are used to holding accountable grown white men who decide to act like teenagers.

  2. Brady Curry

    Republicans hate the President and the President hates Republicans. The President may have the will of the people on his side but the Senators were also elected by a public whose will they must also respect. They don’t get re-elected by giving the President what he wants.

    The Senates non-action may be unprecedented but, if the Constitution has no way of compelling them to act, it must be legal. By not holding “any” conformation hearings the Senators are just avoiding the farce and expense of such hearings. They are still open for business, just not the business of giving the President what he wants.

    1. SHG Post author

      There are two types of people in the world. Some are capable of grasping complex concepts. Do you prefer Big Mac or Whopper?

      1. Brady Curry

        I prefer to think of myself as a Baconator sort of guy. Thank you for allowing me to make a fool of myself but I can’t help it. The Presidents actions have impacted me personally as I have had to take a 1/3 annual pay cut due to his policies on coal. Love your blog.

  3. Dissent

    I’m confused, so please excuse my naive question:

    Senators take an oath of office to uphold the Constitution. Then they refuse to perform their duty under the Constitution. Is this not a federal criminal offense if there’s no constitutional amendment that would permit them to refuse to perform their required function? Or are there no legal consequences for violation of oath of office?

  4. Raccoon Strait

    What nominee would want to stick their head into this quagmire? If they are a legitimate candidate, they would squander their opportunity as they would not likely get nominated a second time. If they are not a legitimate candidate, why would they stand as a target for this turkey shoot?

  5. Jyjon

    This isn’t a new idea or concept. The Legislative branch is following in their own traditions and that of the Executive and Judiciary going as far back as the time of President James Madison, who was the first president that I can find who used the ‘pocket veto’. Refusing to take any action is a government tradition that unfortunately isn’t exercised enough by the Legislative branch.

    1. SHG Post author

      Other than the pocket veto being completely different, and accommodated in Article I, Section7 of the Constitution, it’s almost the same thing.

  6. John Barleycorn

    And here I always thought you had to drive across town for free condoms in DC.

    Who knew the Judiciary Committee was doubling as the Planed Parenthood Clinic of K Street all along.

    I just love these political sexual education lectures you put on from time to time esteemed one but you should really tighten up your syllabus. I can’t figure out if you are talking about affirmative consent here or skipped right to the abortion chapter? Isn’t there supposed to be some sex in the middle there somewhere?

  7. Franklin Michaels

    Correct me (please) if I err, but this looks like it has “political question” stamped all over it. And unlike Canning it’s not a practice that’s been going on for years, to the point that the Court feels free to intervene ’cause it’s business as usual and will surely repeat itself if they don’t. And then again while the Dems in theory hold a majority in an en banc sitting of the DC Circuit, it would be asking a lot of Judges Garland and Srinivasan to kiss their hopes good-bye over a recess appointment. So if there’s a play here, I just don’t see it.

    1. SHG Post author

      While the Court is (as it should be) reluctant to insert itself into the political branches, the interpretation of the performance of constitutional duties isn’t political but legal. Whether this is the point where it goes from political to constitutional is a fair question, but can it be said that this is an easy “political question” call? Not so easy.

      1. Franklin Michaels

        Gotcha. But going down that road would make for an interesting confirmation hearing, should any current member of the DC Circuit ever be nominated to fill a vacancy on the S. Ct.

        1. SHG Post author

          One would hope that judges who aspire to the Supreme Court would have the fortitude to decide the law without being controlled by personal ambition.

  8. EH

    That’s a shock. I was expecting this issue to be fought with daggers in the shadows, not with swords in the square. I agree with you that it’s a dereliction of duty but at least it’s better off done in public.

    The strange thing (to my untrained mind) is that this was done by a committee and not the Senate. I don’t know enough about how this works: do any procedural wonks know if/how the Senate can override a committee?

    1. SHG Post author

      That raises an interesting collateral issue. While the practice is for the Judiciary Committee to hold hearings, there is no constitutional requirement that it does so, and failure to do so doesn’t preclude the Senate from taking a vote. So even if Grassley refuses to play, that doesn’t prevent the full Senate from voting. Internal rules aside, the full Senate can do whatever it (by “it,” I mean the majority leader) pleases.

  9. j a higginbotham

    Will this escalate further? Why not just refuse to hold hearings whenever the Senate and Presidency are in different parties?

  10. Mike G.

    Previously, I said that the Democrats have played this game with Republican nominees, albeit with a little more tact and you said that just because they did it, we shouldn’t fall into the same trap.

    Our “esteemed” VP, Joe Biden, has intimated that perhaps a nominee shouldn’t be proffered until after the November general election. Is it even worth considering that scenario?

    Obama may be trying to back door the Republicans by nominating a moderate republican to the post. Nevada Governor Brian Sandoval is in the vetting stage, I believe.

    1. SHG Post author

      If it’s wrong to do, it’s wrong for both teams. Politicians play politics, but that doesn’t change the mechanics of how government should work or that their games should impair the viability of the judiciary. If Obama nominates Sandoval, that’s his choice, whatever his motivation. As president, the Constitution empowers him to nominate a judge, regardless of why.

      1. Ray Lee

        And, like it or not, the Constitution empowers the Senate to withhold consent, or even action on action on a nominated candidate, regardless of why.

        1. SHG Post author

          I hear that a lot from people who aren’t lawyers, people who wear tin foil hats and people who type on keyboards late at night in the darkness of their room, watched only by their 17 cats. And now you.

          1. Ray Lee

            Ah, the logical fallacy of guilt by association combined with appeal to ridicule. Your blog and you win.

            1. SHG Post author

              That’s one possibility. Another is that there is no language in the appointments clause of the Constitution or caselaw to support your proposition that “the Constitution empowers the Senate to withhold…even action on action on a nominated candidate.” You can pick whichever explanation makes you feel better about yourself.

  11. Ray Lee

    Respectfully, while I agree “that there is no [express] language in the appointments clause of the Constitution or caselaw to support [or reject] [my] proposition that ‘the Constitution empowers the Senate to withhold . . . eve action [] on a nominated candidate[,]’” that such absence does not disprove the assertion. Nonetheless, the Supreme Court has held that “[t]he Senate alone was given final unreviewable power to approve or to disapprove Presidential appointments.” INS v. Chadha, 462 U.S. 919, 955 (1983). Moreover, in addition to the tin foil hat brigade and I, there is support for the proposition that I assert. See generally White, Toward the Framers’ Understanding of “Advice and Consent”: A Historical and Textual Inquiry, 29 Harvard Journal of Law & Public Policy 103, which begins the “conclusion” with the following passage: “Despite suggestions by the President, various Senators, and numerous commentators that the Senate has a constitutional obligation to act on judicial nominations, the text of the Constitution contains no such obligation. Moreover, the suggestion that the obligation is implicit in the Advice and Consent Clause does not appear to comport with the Framers’ understanding of the term.”

    1. SHG Post author

      Ah, now we’re getting somewhere. First, there is no such empowerment. Glad you saw the light. Second, you’ve confused the absence of a remedy with empowerment. The tin foil hat brigade makes that sort of non-lawyerly mistake all the time. Third, there is no question that the Senate has the authority to approve or disapprove, but that’s entirely different than ignore.

      And finally, one commentater, in a second string Harvard journal, in contrast to all other scholarly thought to the contrary, hardly creates a dispute when the text expressly provides the Senate’s responsibility. Even if it did, it would constitute a question, rather than your baseless assertion that “the Constitution empowers the Senate to…even action on action on a nominated candidate.”

      See the problem with your bold but flagrantly erroneous assertion now? You’re welcome.

  12. albeed

    Whew, what a relief!

    After reading the letter from the republican senators of the Judiciary Committee, I might not shoot myself if Obama, in trying to turn the tables on them, nominated one W. G. Otis for the SC.

  13. marty D.

    How appropriate one signer is named Flake. An apt summation of the whole group and their statement. jeff Flate and the Flaketones…

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