It has been several months since Justice Antonin Scalia passed away and since President Barack Obama has nominated a candidate—District of Columbia Court of Appeals Chief Judge Merrick Garland—to replace him. Per Supreme Court nominee tradition, after President Obama’s announcement of his nomination in March, Judge Garland has been meeting with senators on Capitol Hill, submitting the customary disclosures and questionnaires, and preparing for a hearing by the Senate Judiciary Committee, which typically vets nominees for the position of Supreme Court justice. But Senate Republicans—who comprise the majority and control the Judiciary Committee—have refused to hold a hearing or a vote on Garland’s nomination, pledging instead to wait until after the 2016 election to consider a replacement for Scalia’s seat.
In the meantime, much has been said about the impasse and ongoing controversy surrounding Judge Garland’s nomination. The debates range from arguments concerning the Appointments Clause’s proper interpretation, and over what the Founders thought about the appointments process, to the constitutionality of Senate refusal and the scope of its duty to consider or vote on the nomination, and how the Senate’s duty has evolved throughout the history and practice of the appointments process. Others have discussed the real-world impact of the Senate’s refusal to consider Garland’s nomination, including how it relates to the constitutional structure of separation of powers, as well as the ability of the Court to function with eight members.
Many arguments over the Appointments Clause begin with the text. The Appointment Clause, contained in Article II, Section 2, reads: “The President . . . shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court.” Analyses of the Clause’s text have yielded different interpretations about the Senate’s obligation. For instance, some scholars argue that the “shall” directive of the Clause does not apply to the Senate, and the text doesn’t require the Senate to act in any specific way, while others argue that the “shall” does apply to the Senate, and the Senate has a constitutional obligation to act in a specific, formal way. Still others point out that the Clause’s text creates the same constitutional obligation for the President and the Senate, regardless of whether a vacancy is opened in an election year or not.
In a recent National Constitution Center podcast, Mike Ramsey and Erwin Chemerinsky discussed if the Senate has a constitutional obligation to hold nomination hearings. Though Ramsey has conceded that the Senate may have “an implied constitutional duty to provide advice,” he believes that it “does not (of course) have a constitutional duty to provide consent. It can withhold consent if it wants to.” Most people agree the Senate has the prerogative to reject any nominee it deems to be unworthy, though many debate the bases for which the Senate may withhold consent.
But on the point of how the Senate should provide its advice and consent, Ramsey argued that the Senate may “withhold advice” in any ways it chooses, since the Constitution’s text does not proscribe exactly how the Senate is supposed to act. Instead, the Constitution leaves it up to the Senate to make its own rules, so it can determine for itself how its advice is determined and conveyed to the President. Moreover, nothing in the Constitution says that the Senate’s advice must be individualized to particular nominee, he argues.
Similarly, the Senate may also “withhold consent” however it chooses; because of this, the counter-argument “must really be that the Senate has a constitutional duty to express its lack of consent in a floor vote.” But Ramsey argues that there is no constitutional basis for this claim. “The Constitution does not oblige the Senate to do anything; it makes the Senate’s consent a prerequisite for appointment. Thus, no consent equals no appointment. While there might be room to debate how consent can be manifested, absence of consent doesn't depend on any particular procedure. The Senate can decline to consent by not acting.”
Chemerinsky contested this interpretation. He interprets the Clause as requiring the Senate to formally consider a President’s nominee, pointing out that the “shall” directive commands both the President and the Senate to act to fill an empty seat. And the obligation on both exists whether or not the nomination has occurred in an election year: “There is no clause in Article II that says, ‘but not in an election year.’ . . . [P]residents throughout American history have nominated in an election year, the last year of their term,” Chemerinsky said.
Caroline Frederickson, President of the American Constitution Society, agrees with a letter signed by several law professors, including Chemerinsky, concerning the scope of the Senate’s duty and contesting the idea that senatorial silence can equal advice or consent: “The scholars correctly note that the Senate can ‘deny’ the president’s nomination, but only after a full and fair hearing, which means hearings in the Judiciary Committee and full debate on the Senate floor. Anything short of that the scholars conclude is a serious and unprecedented breach of ‘the Senate’s best practices and noblest traditions.’”
Another way to interpret the Clause is an approach based on originalism—by examining the original meaning of the Clause’s text and of “advice and consent.” This is what Justice Scalia viewed originalism to be—a focus on the “original meaning” or public meaning of the Clause at the time it was ratified. A related interpretational method focuses on the original intent of the Founders who drafted the Clause. In this constitutional controversy, scholars have debated less about specific original meaning than about original intent.
For instance, Federalist Society scholar Adam White examined the history and records of the Constitutional Convention in his 2006 article, Toward an Historical Understanding of “Advice and Consent”: A Historical and Textual Inquiry. He offered an in-depth analysis of the Framers’ debates on the appointments process to reach an original intent understanding of the Appointments Clause, in the context of the impasse in the Senate over confirmation of several judicial appointees during the Bush administration. “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,” White concluded. “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.”
By contrast, in the New Republic David Gans posits that the original intent of the Founders was to impose a constitutional obligation on the Senate to formally consider judicial nominees. “During the debates over ratification, supporters of the Constitution confirmed what the text provides: Once the president nominates an individual to serve, the Senate has a responsibility to give its consideration to that nominee, either by approving the president’s choice or rejecting it and insisting on a new nominee. . . . No one argued that the Senate could do an end-run around the process set forth in the Constitution by refusing to consider a nominee at all. On the contrary, it was clear, as future President John Adams wrote in 1789, that under the Constitution, ‘The whole senate must now deliberate on every appointment . . . .’”
The difficulty of relying on an original intent approach is that even during the ratification debates themselves, representatives seemed to understand the Clause in different ways. During North Carolina’s ratification debate, Judge Samuel Spencer argued against the Constitution, because of how it split the appointments power between the president and Senate; he instead advocated for the establishment of a standing council to advise the President. In the same debate, however, James Iredell argued against Spencer’s understanding and his fear that the Senate would have too much power in the process.
The Constitution was ultimately ratified (and the council idea dismissed). But whether Spencer’s or Iredell’s interpretation was correct as to the extent of Senate power over the process can be evaluated by looking at the history and practice of how actual nominations have played out.
Subsequent or historical practice
When the text or original understanding of a constitutional provision is vague or ambiguous, the record of subsequent or historical practice interpreting the specific provision can help to illuminate its meaning. As Justice Breyer wrote in NLRB v. Noel Canning (2014), a case concerning the interpretation of the Recess Appointments Clause: “in interpreting the Clause, we put significant weight upon historical practice. For one thing, the interpretive questions before us concern the allocation of power between two elected branches of Government. . . . And we later confirmed that ‘[l]ong settled and established practice is a consideration of great weight in a proper interpretation of constitutional provisions” regulating the relationship between Congress and the President.’”
The debate over Scalia’s empty seat initially focused on the history and practice of Presidents nominating and Senators confirming a Supreme Court justice during an election year, or the Senate’s consideration of nominations made by a lame-duck presidents. On the American Constitution Society blog, Chemerinsky has argued that over the entire course of American history, Presidents have made 24 nominations in an election year, and in 21 of 24 instances, the nominee has been confirmed by the Senate—an 87.5 percent confirmation rate. Yet other sources debate these numbers.
Later arguments have focused on the practice of the President and the Senate regarding consideration of nominations more generally—for instance, whether the Senate’s practice has been in fact to hold hearings and a vote on every nomination. According to the White House, “since 1875, every Supreme Court nominee has received a Senate hearing or a vote;” and “every nominee who was not withdrawn has received a vote within 125 days of nomination.” And as Geoff Stone writes, the Senate’s longstanding practice has leaned toward confirmation: “from 1790 to the present, the Senate has confirmed 91 percent of the 129 Supreme Court nominees it has considered. In the last 60 years, the Senate has confirmed 89 percent of the 28 Supreme Court nominees it has considered.” But Adam White—in arguing that the Founding debates provided no indication of any expectation that the Senate would be required the vote on nominees—counters that history reflects his position: “Presidents have made 160 nominations for the Supreme Court. The Senate confirmed only 124 of them. And of the 36 failed nominations, the vast majority of them, 25, received no up-or-down vote.”
Separation of powers, politics, and democratic accountability
Examining the Appointment Clause within the larger constitutional structure might reveal how the President and Senate’s respective roles fit into the broader separation of powers scheme, and the delicate balance that the Founders may have had in mind while allocating both branches dual responsibility for appointments. Orrin Hatch, in the National Review, has expressed support for Senator Mitch McConnell’s unflinching stance against considering Garland’s nomination as an achievement in maintaining important separation of powers principles. Hatch argues that the powers of the Congress and Senate have been cut back too far by executive overreach, and the Senate’s current position is a way of righting the power balance. But Gans, in the New Republic, argues that McConnell’s actions are violating separation of powers, because the Constitution “requires the president and Senate to work together to ensure a fully functioning Supreme Court.”
As a result, the conclusion seems to be that despite any perceived obstructionism by the Senate, the only way to get around it is through the political process. Because even if the Senate were in violation of its constitutional obligations by refusing to hold a hearing for Garland, it is unclear what the remedy might be. Noah Feldman thus argues that the issue is a political question, specifically left to political resolution by the Constitution: “Here’s what the Constitution says about filling Supreme Court vacancies: nothing. In fact, the Constitution says nothing about the size of the Supreme Court at all. . . . All the Constitution requires is that there be a Supreme Court. Beyond that, we’re in the realm of politics.” And that’s okay, he writes, because at times the Constitution simply “sets the ground rules for a political battle—and the politicians can fight it out. . . . Our Constitution has its good points—and one of them is that it doesn’t solve every political question. Nor should it.”
Josh Blackman has agreed in an op-ed in the National Review, describing the appointments process as purely political—which is what the Framers intended. Channeling Scalia, Blackman cites the Court’s decision in Noel Canning, which ultimately declined to uphold Obama’s recess appointments even despite government arguments of the Senate’s longstanding “intransigence” at confirming NLRB appointees.
Describing the appointments process as political would seem to reinforce other scholars’ conclusions that the appointments process—via the interaction of the president and the Senate—fosters democratic accountability. Robert Post and Reva Siegel have argued (particularly after amending the Constitution to provide for the direct election of senators in 1913): "By requiring Justices to be nominated by a democratically accountable President and confirmed by a democratically accountable Senate, Article II establishes a selection process that underwrites the democratic accountability of constitutional law.” Yet their conclusions cited the importance of public confirmation hearings on nominees, which serve as “the central forum in which Senators engage the public in the question of whether nominees possess the vision and qualifications necessary to justify investing them with the interpretive autonomy and discretion that judges exercise in our constitutional democracy.”
Thus far, though scholars on the left and the right have debated the ins and outs of Appointments Clause and process, the reality on the ground is that, as the Senate Republicans’ heels remain dug-in, President Obama and the presidential candidates will have to continue to appeal to voters’ sensibilities concerning the importance of the Court vacancy in the coming election. Meanwhile, Judge Garland will continue to make his rounds on Capitol Hill, in the hopes that eventually, in this game of constitutional chicken, something will give.
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