Saturday, March 5, 2016

On the Senate's Absolute Discretion to Refuse to Consider Nominees

Still Waiting For A Hearing . . .

Denied 32 Nominees a Hearing 

In an op-ed in yesterday's New York Times, Vice President Joe Biden contends that Article II, Section 2 of the Constitution imposes a "constitutional obligation" on the Senate to provide "advice and consent" with respect to any nominee to the Supreme Court that the President submits. This requirement, according to the Vice President, includes meaningful "consideration" of such a nominee as exemplified by "meetings," "hearings," and/or "votes."  This requirement to consider such a nominee, the Vice President says, "is written plainly in the Constitution that both Presidents and Senators swear an oath to uphold and defend."   The Vice President also claims that failure to consider such a nominee is an "unprecedented act of obstruction."  

1. The Vice President is wrong on both counts. Neither the Constitution's text nor historical precedent requires the Senate to provide such "consideration" to a nominee.   Indeed, the Vice President himself, while chairing the Senate Judiciary Committee, repeatedly declined to consider Presidential nominations that were governed by the very same constitutional text that he now claims "plainly" required such consideration.  The power to provide "advice and consent" is a discretionary, political power, which the Senate may exercise or not in whatever manner it deems appropriate.

2.  Article II, Section 2 of the Constitution provides as follows:

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." 

The text plainly empowers the President to nominate, at his discretion, possible Supreme Court justices, ambassadors, public ministers and consuls, and other "officers of the United States." The text also requires, in a straightforward and unambiguous way, Senate "advice and consent" (sometimes called "confirmation"), before the President may appoint such a nominee to the office in question.   The clause does not, however, mention or impose any duty to consent to such nominations or, for that matter, to consider the nomination in any particular way. The Vice President's assertion to the contrary is just that, an assertion, which attempts to transform a requirement of Senate consent before appointment into a constitutional mandate of an (unspecified) amount and type of "consideration" before granting or withholding such consent.  Far from "plainly" requiring such process, the language of Article II, Section 2 simply does not bear this construction, which would assign the phrase "with the advice and consent" two entirely different functions.  As Ed Whelan explains over at Bench Memos. "the Constitution says nothing about how the Senate should go about exercising its power to advise and consent-or-withhold consent, and it thus leaves the Senate entirely free to exercise that power as it sees fit."   In the same way, it should be added, the Constitution leaves the President entirely free to determine how to go about deciding whom to nominate in the first place.  See Public Citizen v. Department of Justice, 491 U.S. 440, 467-89 (1990) (Kennedy, J. concurring) (explaining that Congress cannot regulate the process employed by the President to determine whom to nominate to federal office).

3.  Of course, historical practice can in some instances give meaning to ambiguous constitutional provisions.  However, even if the language of Article II, Section 2 were ambiguous, and it is not, historical practice contradicts the Vice President's reading of this provision as well as his claim that refusal to consider a nominee during the next several months would constitute "an unprecedented act of obstruction."  For instance, according to this 2009 report by the Congressional Research Service, Henry Stanberry (pictured above), whom President Andrew Johnson nominated to the Supreme Court in 1866, received no hearing, no committee vote, and no Senate vote. George E. Badger, nominated by President Fillmore in 1853, also received no hearing or Committee vote. Worse yet, the Senate never even referred his nomination to the Judiciary Committee but instead simply voted to "postpone" consideration of his nomination, to which it did not return.  In the same way, the Senate also refused to refer the 1861 nomination of Jerimiah Black to the Judiciary Committee, and the Senate declined to proceed to a vote on his nomination.  Even these examples of purported "obstruction" seem relatively minor compared to the experience of President Tyler, whose nominations for a single seat on the Supreme Court repeatedly failed to obtain Senate approval, resulting in a vacancy of 841 days.  

4.  Those who prefer more modern examples need look no further than the current Chief Justice of the United States, John Roberts, Jr. President George H.W. Bush nominated Mr. Roberts to an open seat on the U.S. Court of Appeals for the District of Columbia Circuit in January, 1992.  Judges of that court, are, like all federal judges, "officers of the United States."  Such nominations are therefore subject to the same Article II, Section 2 that governs Supreme Court nominations.  If this constitutional text "plainly" obliges the Senate to "consider" Supreme Court nominations, then it must also require the same consideration for other nominees.  However, the Senate Judiciary Committee, chaired by then-Senator Biden, refused to consider the nomination of Mr. Roberts.  This was not the only such example.  As Jonathan Adler reports, the Judiciary Committee also refused to consider the nomination of Lillian BeVier to a seat on the U.S. Court of Appeals for the Fourth Circuit, for which President Bush nominated her in October, 1991.  Again, there was no hearing, no committee vote, and no Senate vote.  Indeed, after reviewing a different report of the Congressional Research Service, Marc Thiessen concludes that Senator Biden's Judiciary Committee "killed 32 Bush [nominees] to the federal bench without giving them so much as a hearing." If Vice President Biden's current interpretation of Article II, Section 2 is correct, then he violated his oath of office 32 times during that period.  There is, of course, an alternative and more persuasive account of the Committee's actions, and one that does not impute any such violation to then-Senator Biden, namely, that the Senate was exercising its constitutional authority to decline to consider such nominations.

5.  In Marbury v. Madison, 5 U.S. 137 (1803), Chief Justice John Marshall explained that the Constitution vests the President "with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character and to his own conscience." Marshall continued that "the subjects [of such powers] are political.  They respect the nation, not individual rights, and, being entrusted to the Executive, the decision of the Executive is conclusive." According to Marshall, the power to nominate officers of the United States was just such a power "to be exercised by the President, according to his own discretion."  The Senate's power to advise and consent is also such a power, committed to the discretion of the Senate and subject only to the constraints of politics and conscience.  To be sure, discretion vested in the Executive, Legislative or Judicial branch can be subject to abuse.  However, as Joseph Story explained nearly two centuries ago:

"It is always a doubtful course to argue against the use or existence of a power from the possibility of its abuse.  It is still more difficult by such an argument to ingraft upon a general power a restriction which is not to be found in the terms in which it is given."

See Martin v. Hunter's Lessee, 14 U.S. 304, 344-45 (1816).  Story was of course speaking of the meaning of Article III, and the possibility that the Supreme Court might abuse its authority to review a state court's construction of federal law.  However, his argument is perhaps even stronger in the context of Article II, where both the President and the Senate are, unlike the Courts, subject to political constraints. In a constitutional republic, the remedy for abuse of the power to nominate and/or to advise and consent resides at the ballot box, and not the imposition of an ad hoc extra-constitutional "restriction which is not to be found in the terms in which [the power] is given."