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." 

On the Miniscule Chance That a Run By Michael Bloomberg Will Precipitate a Constitutional Crisis

Billionaire and former New York City Mayor Michael Bloomberg is reportedly considering running for President as an independent.  In a recent Op-ed, Bruce Ackerman argues that such a third party run could "plunge the country into a constitutional crisis."  Ackerman envisions a scenario in which Bloomberg wins enough states that no candidate earns a majority of the nation's 538 electoral votes. Absent such a majority, Ackerman explains, the 12th Amendment requires the newly-elected House of Representatives to select the President, from among those three candidates that earned the most electoral votes.  The Amendment also provides that the delegation of each state casts a single vote, and requires a majority vote of 26 states to elect a President.  If no candidate receives such a majority, then the individual recently elected Vice President assumes the Presidency as acting President, unless that individual received less than a majority of the electoral votes cast, in which case the Senate elects the Vice President/Acting President.  Ackerman opines that such a process with degenerate into a "free-for-all," characterized by "desperate efforts," "melodrama" and political maneuverings pursuant to a process that the People find "utterly mysterious," leading them to "turn away in despair."  The original 12th Amendment, Ackerman says, "can't cope with the realities of modern politics."  If Mr. Bloomberg is a true patriot, Ackerman says, he will not allow "personal ambition" to "throw the United States into a grave constitutional crisis."

The scenario that Ackerman imagines, while theoretically possible, is highly unlikely.  For one thing, a single significant third party candidacy has never prevented a major party candidate from obtaining a majority of electors. Indeed, the 12th Amendment has come into play exactly once, in 1824, when four significant candidates (Andrew Jackson, John Quincy Adams, William Crawford and Henry Clay) received 99, 84, 41 and 37 electoral votes respectively. If history is any guide, a third party run by Mr. Bloomberg will no more result in invocation of the 12th Amendment than did such runs by Theodore Roosevelt, George Wallace, or Robert M. Lafollette, all of whom won electoral votes.

More fundamentally, Ackerman's analysis does not come to grips with one of the "realities of modern politics," namely, the Republican Party's dominance of the House of Representatives.  The GOP currently maintains a 247-188 margin in the House, with many Democratic seats concentrated in large single states such as California, New York and Illinois.  More importantly, Republicans currently hold majorities among the House delegations of 33 states. Three other delegations are evenly split and thus could conceivably swing Republican in 2016 or, if they remain split, vote for the Republican candidate upon invocation of the 12th Amendment. It seems fanciful to assume that eight or more such states will choose Bloomberg over a Republican nominee for President. To be sure, the 12th Amendment provides that newly-elected House members would elect a President if the provision is invoked. However, given that only a handful of House races are competitive, the chance that Republicans will emerge from the 2016 elections with majorities of less than 26 House delegations seems highly remote.  Thus, far from assuring a constitutional crisis, a run by Mr. Bloomberg could increase the chance of a Republican President come 2017.  Mr. Bloomberg can run for President with his patriotism intact.

 

Yale Really Does Protect Free Expression (For Now)

A recent essay in the Economist magazine addresses efforts to curb free speech on college campuses around the country.  According to the piece, students at 72 colleges have demanded that universities curtail free expression in one way or another.  The essay also notes that the University of Chicago has rejected such efforts and reaffirmed its commitment to "free, robust, and uninhibited debate and deliberation among all members of the University’s community."

Fortunately Chicago is not standing alone.  As the Economist reports, the Chicago statement has inspired similar or identical statements by a growing number of institutions, including Princeton, the University of Wisconsin, Purdue University, American University, Chapman University, Winston-Salem State and Johns Hopkins. (Click on each respective institution in the previous sentence for a link to the relevant policy statement.)  Like Chicago, some of these institutions are private and thus not subject to the First Amendment.  Nonetheless, each believes that protection for Freedom of Expression is essential if a University is to play its fundamental role of facilitating the search for truth.

The Economist also notes that support for the Chicago position is "not universal."    In particular, the Economist cites Yale University as an example of a university that has purportedly declined to embrace the Chicago approach.  The essay concedes that a 1974 report of a Yale committee --- the famous Woodward Report --- extols the "right to think the unthinkable" and "discuss the unmentionable."  Still the essay notes that one member of the Committee that prepared the report dissented and that a minority of those surveyed at the time expressed skepticism about whether certain forms of free expression should be tolerated.  The essay also claims that the report, "when read in full . . . is confused."

Closer inspection, however, reveals that the Economist's characterization of Yale's official position on Freedom of Expression is unwarranted.  Instead, Yale's policies, contained in the Woodward Report, are for all intents and purposes identical to those contained in the Chicago statement.  For instance, the Woodward Report, which begins with a quote from Milton's Areopagitica, provides that:

“The history of intellectual growth and discovery clearly demonstrates the need for unfettered freedom, the right to think the unthinkable, discuss the unmentionable, and challenge the unchallengeable.” (emphases added here and below)

The Report also recognizes that Freedom of Expression supersedes other important values, including harmony, civility and mutual respect.  Thus the Report provides as follows:

“Without sacrificing its central purpose, [the University] cannot make its primary and dominant value the fostering of friendship, solidarity, harmony, civility, or mutual respect.  To be sure, these are important values; other institutions may properly assign them the highest, and not merely a subordinate priority; and a good university will seek and may in some significant measure attain these ends.  But it will never let these values, important as they are, override its central purpose.  We value freedom of expression precisely because it provides a forum for the new, the provocative, the disturbing, and the unorthodox.” 

The report also makes it clear that each individual who voluntarily enters the Yale community thereby takes on the obligation of protecting Freedom of Expression, “above all.”

"By voluntarily taking up membership in a university and thereby asserting a claim to its rights and privileges, members also acknowledge the existence of certain obligations upon themselves and their fellows.  Above all, every member of the university has an obligation to permit free expression in the university.  No member has a right to prevent such expression.”

The Report recognizes that there are "slurs or epithets" that "no member of the community with a decent respect for others should use" and that individual members of the community have "ethical responsibilities" to refrain from certain forms of expression.  This language, while certainly correct, may well be the source of the "confusion" the Economist alleges.  However, this language does not ambiguate or detract from the Report's endorsement of unfettered free expression.  Instead, after noting these "ethical obligations," the Report expressly "reject[s]" the "argument that behavior which violates these social and ethical considerations should be made subject to formal sanctions" as well as "the argument that such behavior entitles others to prevent speech they might regard as offensive." Allowing such institutional or private censorship, the Report says, would contradict the "conviction that the central purpose of the university is to foster the free access of knowledge."  As a result, the report concludes "even when some members of the university community fail to meet their social and ethical responsibilities, the paramount obligation of the university is to protect their right to free expression. This obligation can and should be enforced by appropriate formal sanctions."  Such "secondary social and ethical responsibilities," the Report concludes, "must be left to the informal processes of suasion, example and argument."  

In sum, the Woodward Report, issued more than four decades ago, is a classic articulation of the virtues of Free Expression in the University context and an unqualified rejection of calls to censor speech, even speech that is offensive.  Like Justice Louis Brandeis, the Report recognizes that the expression of noxious ideas that all good people will reject out of hand is a possible but unfortunate byproduct of robust protection for free expression.  Presumably the authors of the Report also believed that members of the community have an ethical obligation to denounce and condemn such speech. 

To be sure, support for Free Expression was not unanimous at the time within the Yale Community. One member of the twelve person committee that drafted the Woodward Report dissented, and numerous members of  Yale community apparently disagreed with portions of the Report.  But then the main student newspaper at the University of Chicago objected to the Chicago statement. Such dissent, itself an example of Free Expression, does not undermine the clarity of Yale's or Chicago's commitment.  Perhaps more to the point, Yale has codified the Woodward Report in its "Undergraduate Regulations." (See here, pp. 47-49).  The same regulations prohibit faculty, staff or students from interfering with the "orderly conduct" of a lecture, meeting, or "other public event."  (See id. at 49).

It thus appears that the Economist has inadvertently misinterpreted Yale's policies on Free Expression.  Instead of diverging from Chicago's recent statement, the Woodward Report presaged it. Indeed, Yale is not alone in anticipating Chicago's statement.  A little more investigation reveals that, while not "universal," support for Freedom of Expression within American Higher Education is perhaps broader than many suppose.  Here in Virginia, for instance, three universities  --- George Mason, William and Mary, and the University of Virginia --- have received the very highest rating for protection for Free Expression from the Foundation for Individual Rights in Education, a non-profit organization that “defends and sustain individual rights at America’s colleges and universities”  Many other major universities have also received FIRE's very highest rating, including UNC Chapel-Hill, Arizona State University, Carnegie Mellon, the University of Florida, the University of Pennsylvania and the University of Utah,  (See here for a full list of schools that have received FIRE's highest rating.)  

Of course, formal policies do not always suffice to protect Freedom of Expression or other liberties. Even the 1977 Soviet Constitution --- 177 articles long --- included protections for "freedom of speech, of the press, and of assembly" (Article 50) as well as "freedom of conscience" and the right "to profess or not profess any religion, and to conduct religious worship or atheistic propaganda."   (Article 52)  As Judge Learned Hand famously explained, in a 1944 speech to over a million citizens: "Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it."  In the same way, no university policy, no matter how eloquent or widely embraced when adopted, can ensure continued robust protection for Free Expression, unless there is sufficient support for this value within the relevant community.  Those who hope to preserve Free Expression in America's colleges and universities must do more than invoke standing policies authored generations ago.  They must, in addition, continually affirm and defend the paramount value of freedom of expression.  In this spirit, universities may wish to sponsor programs or workshops for incoming students explaining the origin and rationale for robust protection of freedom of speech on campus as well as any alternative perspectives on the matter.  

Justice Scalia, Rest in Peace

Justice Antonin Scalia died unexpectedly over the weekend. Individuals who often disagree about fundamental legal and political questions have offered effusive praise for the Justice, filled with superlatives such as "giant of jurisprudence," "great man," "legal giant," "one of the greats," "great," "legal giant." (again), "legal titan," and "deeply principled."  

Those who are familiar with Justice Scalia's life and work are not surprised by these encomiums. The Justice was deeply and fiercely committed to the Rule of Law.  He knew that departure from the original meaning of the Constitution or ordinary legislation gave judges and others a license to exercise arbitrary and illegitimate authority over their fellow citizens. Through sheer force of intellect, profound learning, wit and powerful expression, he changed the way that lawyers and judges interpret and thus apply legal texts in our constitutional republic.  As a Judge and then a Justice he worked tirelessly to discern and apply the meaning of statutes and constitutional provisions that governed the cases before him, rendering great service to our constitutional republic in the process. He did all of this with an abiding faith in the American People and their ability to govern themselves through law, both ordinary and constitutional, that compels officials, including judges, to heed the People’s will.  His work and personal example inspired countless individuals to defend the Constitution and the Rule of Law.  His death leaves an enormous void in our Republic and in the lives of so many individuals who loved and admired him.  

Tribe Chalks Up 17th Win in Williamsburg

 

Comfortable Margin

 

Powerful Three Point Duo

William and Mary continued its march to a third straight 20 win season today, handily defeating the University of Delaware 90-64 before 6,028 fans --- the most this year --- in Williamsburg.  The Tribe sank thirteen three point shots, including two each by Terry Tarpey (pictured above on the left) and Omar Prewitt (pictured above on the right).  Prewitt scored 21 points, leading a balanced scoring attack that left five Tribe players in double figures.  Tarpey also snagged 11 rebounds, and Sean Sheldon added 8.  (Go here for the game's box score.)

The Tribe now sits in sole possession of second place in the CAA, with a 17-6 record (9-3 in conference play), just one game behind the UNCW Seahawks.  Even before today's win, William and Mary stood 34th in the RPI power rankings, ahead of Arizona, Michigan and Indiana, for instance.   With six games left in the regular season, three potential games in the CAA tournament, and a possible bid to the NCAA tournament beyond that, the Tribe seems poised to match or exceed the 24 wins it earned in the 1948-49 season, when the team finished second in the Southern Conference, behind North Carolina State..  (That season's schedule included games against the Norfolk Naval Air Station, Quantico Marines, Langley Field, and the Little Creek Amphibious Base.)

The Tribe takes on Hofstra at William and Mary Hall this Thursday, February 11 at 7:00 PM.   Go Tribe!

 

William and Mary BOV Announces Charter Day Extension of President Reveley's Appointment

Reason to Celebrate!

Today William and Mary celebrates the 323rd anniversary of its Royal Charter, issued by King William and Queen Mary in 1693. The charter provides that the College shall consist of "one President, six Masters or Professors, and an hundred scholars [students] more or less."  The Charter named James Blair, selected by the General Assembly of Virginia, as the College's first President, "during his natural life." Bishop James Madison, for whom this blog is named, served as President of the College from 1776-1812.  

Blair and Madison are tough acts to follow, but W. Taylor Reveley III has proved himself a worthy successor to these leaders. Earlier today Todd Stottlemyer, '85 and Rector of the College and William and Mary, announced that the College's Board of Visitors has unanimously extended the appointment of Taylor Reveley as President of William and Mary until June, 2018.  Here is the complete announcement.

Rector Stottlemyer's announcement rightly notes that President Reveley's leadership "has been crucial to the University's sustained excellence."    He took the helm in early 2008 and has presided during a time of great financial challenge to higher education in general and William and Mary in particular. Along with Rector Stottlemeyer, former Rector Trammel, and others, President Reveley helped conceive, develop and execute a new financial model for the College, in the form of the William and Mary Promise.  Recently extended by the Board of Visitors, the Promise helped ensure that entering students would experience predictable tuition bills while simultaneously enhancing affordability for low and middle income families and generating stable revenue necessary for important investments in academic excellence.  As a result, the College continues to provide an excellent and accessible education.   At the same time, President Reveley and others conceived and launched the College's most ambitious fundraising campaign, For The Bold, with a goal of raising $1 billion, about a third of which will be devoted to scholarships.  He also established a strategic planning process, under the auspices of the University's Planning Steering Committee, to ensure a more transparent assessment of the College's objectives and a more rational allocation of resources between such objectives.  In short, the College is fortunate that he has agreed to extend his service as President.

This blogger would be remiss if he did not mention one more notable achievement, namely, the designation of the College's current mascot.  After a grueling process that produced five finalists, President Reveley chose the Griffin, as recounted in this video.  No wonder the mythical creature is clapping!