Saturday, May 21, 2016

More on the Senate's Absolute Discretion to Refuse to Consider Presidential Nominees

In an excellent essay in the Atlantic, Michael D. Ramsey, the Hugh and Hazel Darling Foundation Professor of Law at the University of San Diego, demolishes claims that Article II of the Constitution somehow requires the Senate to hold hearings and a vote on President Obama's nominee to the Supreme Court, Chief Judge Merrick Garland.   As Ramsey points out, the text of Article II does not mention hearings or a vote, so any such requirement must be found "by implication."  

Ramsey makes three arguments rebutting claims that the Constitution somehow implies such a duty. 

First, several other provisions of the Constitution provide that one branch may propose actions subject to the approval of another.  For instance, the President may propose treatises subject to the Senate's consent.  None of these provisions, with one exception, has been read to require any sort of process before the second body refuses to act. The exception is the so-called "presentment clause" (Article I, Section 7), which provides that the President has only ten days to veto a bill and, if he does so, must given his reasons in writing.  As Ramsey  puts it: "The framers knew how to require formal action if they wanted to; they just chose not to require it in the appointments clause (and elsewhere)." 

Second, Article I, Section 5 of the Constitution expressly empowers the Senate to: "determine the rules of its proceedings."  While the Senate could adopt a rule requiring formal proceedings before rejecting a nominee, it has not done so.  

Third, Article II's appointments clause governs the nomination and possible appointment of all "officers of the United States," including lower court judges and countless executive branch officials. Any requirement of a hearing and a vote would therefore also apply whenever the President nominates an individual to such a position. And yet, the Senate has often declined to provide a hearing or vote to nominees for such offices.  (For instance, Jonathan Adler has explained, the Senate declined to consider over two dozen of President George W. Bush's nominees to various United States Courts of Appeals, including one John Roberts.)  Here Ramsey responds to the claim that the Supreme Court is somehow "different" because the Constitution expressly requires Congress to create this body.  As Ramsey explains, there is no constitutional requirement that the Supreme Court contain nine Justices. Instead, Congress sets the number of Justices and has, over the years, set the number at six, seven, nine or ten justices.  (This blogger notes that the Court that decided Marbury v. Madison, 5 U.S. 137 (1803) consisted of six justices, while the Court that decided Gibbons v. Ogden, 22 U.S. 1 (1824) included seven.)  Declining to consider or confirm a ninth justices does not prevent the Court from performing its constitutional role.

The Atlantic essay is a streamlined version of Ramsey's arguments on this question.  For his elaboration on these arguments on the Originalism Blog, go here, here, here and here.  Go here for this blogger's own take on this question.