On The Senate's Unchanged Discretion to Refuse to Consider Nominees

Principled But Wrong

The Republican National Committee is touting Vice President Joe Biden's assertion that Senate Democrats should not obstruct consideration of President-elect Trump's nominee for the U.S. Supreme Court.  In particular, the RNC is highlighting the Vice President's following statement, made during a lengthy interview on PBS.  

“[T]he Constitution says the president shall nominate, not maybe could maybe can.  He shall nominate.  Implicit in the constitution is that the senate will act on its constitutional responsibility, will give its advice and consent.  No one is required to vote for the nominee, but they, in my view, are required to give the nominee a hearing and a vote.  It’s been my policy since I’ve been in the United States Senate.”

This blogger gives the Vice President significant credit for taking the same position with respect to the next President's nominee as he took with respect to President Obama's nominee, Judge Merrick Garland, for the same seat.  The Vice President is to be commended for adhering to principle, even when such adherence could disadvantage the objectives of his own party.  At the same time, this blogger respectively disagrees with the Vice President's assertion that the Constitution somehow requires the Senate to provide any particular form of consideration to a President's nominee for the Supreme Court.  Instead, as previously explained on this blog, the Constitution confers upon the Senate absolute discretion to refuse to consider nominees to the Supreme Court or, for that matter, any other office the appointment to which requires Senate consent.  (See also here). The decision whether and how much to consider a particular nominee is in its nature political and thus a decision for which Senators are accountable to the their constituents, and not the Constitution.  Cf. Marbury v. Madison, 5 U.S. 137 (1803) (distinguishing between the exercise of certain powers, subject to legal constraint, and the exercise of "political" powers, the results of which "are only politically examinable").

None of this is to say that the Senate should decline to consider any particular nominee to the Supreme Court.  However, the Constitution has nothing to do with this question.  The GOP should refrain from republishing unconvincing constitutional arguments, particularly arguments that Republican Senators properly rejected when they declined to consider the nomination of Judge Garland.  The Constitution has not changed since that time. 

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." 

Conservatives Embracing Science, While the Left Balks

Accepts Science 

Ditto

Rejects Science/Thinks He Knows Better

Senator Marco Rubio (R-Florida) and Pat Robertson, both pictured above, have made news recently, both embracing the scientific consensus that the earth is 4.5 Billion years old.   As Senator Rubio, a Roman Catholic,   put it:  "Science says (the earth) is about 4.5 billion years old.  My faith teaches that's not inconsistent. . . . God created the heavens and the earth, and science has given us insight into when he did it and how he did it."   Mr. Robertson, a Southern Baptist and the Chancellor of Regent University, put things this way:

"Bishop Ussher [who opined that the Earth was created in 4004 BC] wasn't inspired by the Lord when he said that it all [creation of the Earth and Man] took 6,000 years. It just didn't. You go back in time, you've got radiocarbon dating. You got all these things and you've got the carcasses of dinosaurs frozen in time out in the Dakotas.  They're out there. So, there was a time when these giant reptiles were on the Earth and it was before the time of the Bible. So, don't try and cover it up and make like everything was 6,000 years. That's not the Bible."

Mr. Robertson's remarks won the praise of national luminary "Bill Nye the Science Guy," who expressed hope that Mr. Robertson would continue to press his view on the age of the Earth.  Previously Mr. Nye had argued that the belief that the Earth is 6,000 years old "threatens science."

Unfortunately, some public officials still reject basic scientific teachings.  For instance, as previously explained on this blog, President Obama's repeated claim that tax cuts caused the recent "Great Recession" contradicts basic economic science of the sort taught to thousands of college freshmen each year in the United States and around the world.  More recently, Vice President Biden (pictured above) joined the anti-science chorus, claiming, again contrary to basic economic science, that tax cuts and increased spending during the G.W. Bush Administration caused the Great Recession.  Here's what the Vice President said, during his debate with Congressman Paul Ryan.  According to the Vice President:

"And, by the way, they [Republicans] talk about this Great Recession [of 2008-2009] as if it fell out of the sky, like, 'Oh, my goodness, where did it come from?' It came from this man [Congressman Ryan] voting to put two wars on a credit card, to at the same time put a prescription drug benefit on the credit card, a trillion-dollar tax cut for the very wealthy. I was there. I voted against them. I said, no, we can’t afford that."

Like President Obama's claim about tax cuts, Vice President Biden's claim that deficit spending caused the recent recession is economic nonsense, akin to a claim that the Earth is flat or the center of the Universe.  Just as there is a scientific consensus that the Earth is 4.5 Billion years old, there is a longstanding scientific consensus that increasing the deficit, whether by tax cuts, increased spending or both will stimulate aggregate demand, increase employment and increase the nation's real economic output.  See e.g. N. Gregory Mankiw, Macroeconomics, 296 (7th Edition 2010) (explaining how tax cuts increase the budget deficit and thus aggregate demand and national output); Rudiger Dornbusch and Stanley Fischer, Macroeconomics, 73-83, 401-11 (2d Edition 1981) (explaining how tax cuts and spending increases can increase aggregate demand and thus national output).  The only exception is for cases in which the economy is already at full employment.  In such cases, deficit spending cannot increase output but can only result in inflation.  However, so far as I know, no one contends that the economy was at full employment when, say, Congress enacted the so-called Bush tax cuts in 2001.  In the same way, the economy was at less than full employment when President Kennedy proposed across-the-board tax cuts in an effort to "get the economy moving again."

Of course, there are other reasons to oppose budget deficits and the resulting increase in the national debt.  For instance, government borrowing to encourage consumption can crowd out private investment, thereby partly (but only partly) offsetting any resulting increase in national output.  A nation could decide to forgo higher GDP in the short run in the hopes that, in the longer run, increased private investment will increase national productivity and thus potential national output.  But it bears emphasis that this argument against increased deficits assumes that such deficits increase national output, contrary to Vice President Biden's assertion.

Oddly the economics profession has been relatively silent in the face of this Administration's rejection of basic economic science.  To be sure, hundreds of economists endorsed Mitt Romney in the recent general election.  Six of these individuals were past recipients of the Nobel Prize in Economic Science.  However, so far as I know, no such economist has called out President Obama or Vice President Biden for their rejection of basic science.  This is surprising, because the rejection of economic science can have serious real world consequences for millions of ordinary Americans.  (Imagine if, instead, the President and Vice President claimed that vaccinations do not work or that smoking does not harm your health.  Surely the relevant scientific professionals would (properly) be up in arms.)

Perhaps the economics profession needs its own "Bill Nye the Science Guy" to shame public figures who reject basic economic science. 

Vice President Biden's Selective Imposition of His Religious Views

Imposed Their Religiously-Informed Views on Others

At last night’s debate Vice President Biden repeated the assertion that, although he is Pro-Life and personally opposed to abortion, he will not seek to impose that view on individuals who do not share that position. He also repeated his endorsement of Roe v. Wade, 410 U.S. 113 (1973), which held that states cannot ban abortion during the first trimester of a pregnancy and can only ban the practice in the second trimester if necessary to protect the health of the mother.  Thus, Vice President Biden endorsed a more robust right to abortion than recognized by the Supreme Court, which partly overruled Roe in 1992, holding that states may adopt provisions such as waiting periods that discourage abortions so long as such provisions do not "unduly burden" the practice. See Planned Parenthood v. Casey, 505 U.S. 833 (1992). The Vice President also promised that a second Obama Administration would appoint Justices to the Supreme Court who agreed with Roe.

The Vice President’s claim that imposing religiously-motivated views on others is inappropriate in a democratic society is perplexing to say the least and contrary to the Vice President's own statements.  After all, in the very same answer, the Vice President endorsed what he called “Catholic social doctrine” as a guide to legislation. Moreover, the Vice President defined this doctrine as “taking care of those who, who can’t take care of themselves, people who need help.”  (He did not explain why the unborn can "take care of themselves.")  These views were on display throughout the debate, as the Vice President repeatedly called for higher taxes on the wealthy and opposed raising the eligibility age for Medicare, for instance. (Whether Catholic social doctrine actually requires such positions is an entirely different question, of course.  See here.) Put another way, the Vice President repeatedly expressed a desire to employ coercive legislation, including higher taxes, to impose his religiously-informed economic policies on individuals who might strongly disagree.  Ditto for other Catholic politicians who have, over the years, invoked religious beliefs to justify coercive minimum wages, mandatory collective bargaining, and other forms of economic intervention.

Civil rights legislation provides another example. During the 1960s religious leaders like The Reverend Dr. Martin Luther King, Jr. and Father Theodore Hesburgh (then President of Notre Dame), marched in support of Civil Rights legislation. (Both men are pictured above at a Civil Rights rally at Soldier Field in Chicago in the summer of 1964.) Indeed, as a member of the nation’s Civil Rights Commission, Father Hesburgh helped draft the 1964 Civil Rights Act.  Among other things, the Act banned racial discrimination in privately-owned public accommodations such as motels, restaurants and theaters, over the vehement objection of segregationists. Put another way, Dr. King, Father Hesburgh and numerous other Americans advocated legislation that coercively imposed their religiously-motivated views on others. Fortunately these great men and the men and women who followed their lead did not share Vice President Biden’s selective aversion to “imposing their views on others.”  Religion has informed our Nation's public debates since the founding, and we are stronger for it.