I Debate Erwin Chemerinsky on the Senate and Judge Garland
Podcast here, from the National Constitution Center. I argue (unsurprisingly) that the Senate has no constitutional obligation to hold hearings or a formal vote on Judge Garland (without taking a view on whether that is a good idea). Dean Chemerinsky (UCI law) strongly defends the opposing view. Jeff Rosen is, as always on these podcasts, a gracious, fair and effective moderator.
Dean Chemerinsky is one of the greatest constitutional law teachers and debaters of our era, so ordinarily I would expect to get crushed in a match-up like this -- but it shows the weakness of his position that (in my biased view) I think I sort of hold my own against him.
He opens with, and mostly relies on, two basic arguments, neither of which I find at all persuasive. The first is that the text of the appointments clause uses the word "shall," and that word should be read to impose a mandatory duty on the Senate as well as on the President. Thus, he says several times, "advice and consent" simply means that the Senate must "consider" the nomination, by which he means hold a formal vote. (I think he concedes part way through the discussion that the Senate does not have to hold hearings).
But the appointments clause manifestly does not say this. "Shall" refers only to things the President does: nominate and appoint. Even if you think "shall" is mandatory (see here by Seth Barrett Tillman for the argument that it isn't), "shall" does not refer to the Senate. Nor could it, because then it would say "shall give advice and consent," and no one thinks the Senate "shall" consent. Dean Chemerinsky wants the clause to say that the Senate "shall hold a vote on whether to consent" but there's no way to make the language say that without adding a bunch of words that aren't there.
And if it did say this, it would mean that the Senate has an obligation to vote on all presidential appointments, not just Supreme Court appointments. There is only one appointments clause, applying to all appointments. Of course the Senate has never thought it had this duty, and in modern times the Senate most notably refused to vote on multiple lower court nominations during the G.W. Bush presidency. Dean Chemerinsky clearly does not want to say that the Senate practice under Bush was unconstitutional (I bet at the time he said it was fine, although I have not tried to identify such a statement).
This leads to his second argument (and a related subsidiary argument): that there is a unique problem with refusing to vote on Supreme Court nominations. That is so, Dean Chemerinsky says, because failing to vote impairs the operation of another branch of government, which is unconstitutional. (The subsidiary argument is that the Senate has never before refused to consider a Supreme Court nomination -- which of course works as an argument only if you think there's something constitutionally distinctive about a Supreme Court nomination).
I simply don't understand this argument (though I see why he has to make it). First, I don't see how not voting on a nominee for the ninth seat on the Court impairs the operation of the Court as a whole in any constitutionally significant way. I agree that the Senate could not in effect shut down the Supreme Court (which is established by the Constitution) by refusing to consent to any appointments to it. But a temporary delay regarding one Justice is not equivalent. The Constitution does not even require that there be nine Justices; Congress could simply abolish the ninth seat, and no one would think that unconstitutionally impaired the Court's operation. Operating with eight Justices may be a little inconvenient for the Court, but that's just a cost for the Senate to weigh in considering how quickly to act.
In addition, Dean Chemerinsky is not arguing (nor could he be arguing) that the Senate has a duty to consent to a nomination. The Senate could reject Judge Garland by a formal vote, and then keep on rejecting nominees until after the election. This would have exactly the same effect on the Supreme Court as the current approach. Politically it may be easier for the Senate to pursue its current approach, but that has no constitutional signficance. Dean Chemerinsky is actually arguing that the Senate impairs the operation of the Court not because it is prolonging a vacancy but because it is not holding a formal vote. But whether the Senate acts formally or informally on the nomination is irrelevant to the Court. So I think the argument about impairing the operation of another branch has little logical force, however appealing it may be rhetorically.
My affirmative argument in basically in four parts, although it is not presented all together in the podcast because of the way the questions are structured. Briefly:
(1) The text imposes no duty on the Senate. The President nominates, and if the Senate consents, the President appoints. The Senate's role is simply as a check on the President, as a condition on the power of appointment.
(2) By Article I, Section 5, the Senate has power to "determine rules of its proceedings." So the Constitution leaves to the Senate the question how to respond to a presidential nomination. The Senate could adopt a rule that it will promptly hold a vote on all presidential nominations (I think that would be a very sensible rule). But that is for the Senate to decide, and for better or worse the Senate has adopted a different approach, which is that the majority leader and the judiciary committee chair can decide not to have formal proceedings and instead withhold the Senate's consent through an informal process. The opposing view contends that the Senate is under a constitutional obligation to adopt a formal procedure that requires a vote, but Article I, Section 5 says the exact opposite. (As an aside, Dean Chemerinsky repeatedly says that the Senate has an obligation to "consider" the nomination. I don't see how even this is true -- perhaps the Senate might decide it is too busy with other matters -- but in any event, in this particular case the Senate has clearly considered the nomination and decided that whatever Judge Garland's individual merits, no consent will be given at this time for political and institutional reasons. Dean Chemerinsky's contention is actually that the Senate must give formal and individualized consideration to the nominee. Again, under Article I, Section 5, that's for the Senate to decide -- and for the voters to punish Senators in the next election if they think the Senate decides poorly).
(3) As Vikram Amar has argued, there are many places in the Constitution where one entity proposes a measure subject to another entity's consent: the House passes a bill, which the Senate approves or not; the President recommends a law, which Congress approves or not; the President signs a treaty, which the Senate approves or not; Congress proposes a constitutional amendment, which the states approve or not. In none of these cases is there any constitutional obligation on the second entity to "consider" (in a formal manner) the proposal. If the second entity declines to approve, for whatever reason and in whatever manner, the measure does not take effect.
The one exception is presentment (Article I, Section 7): when Congress passes a bill, the President ordinarily must veto the bill within 10 days -- and give reasons for doing so -- or the bill becomes law. Use of this procedure in Article I, Section 7 shows that the framers knew how to require formal consideration if they wanted to; they just chose not to require it in the appointments clause and in the other instances mentioned.
(4) Finally, for what it's worth, the longstanding practice of the Senate, at least in modern times, is often not to act formally on a nominee. True, this practice has been directed to lower court and executive branch nominations, but there is no evidence that the Senate has ever thought it had a duty not to extend it, if it chose, to Supreme Court nominations. And the appointments clause applies to all nominations; if the clause imposed a duty on the Senate, that duty would apply to all nominations. The Senate's practice shows that, under both Democrats and Republicans, it thinks the clause does not impose such a duty.
RELATED: Via Ed Whelan at NRO, Dean Chemerinsky has this piece in The Atlantic, which I think makes clear (perhaps unintentionally) what the Senate has considered in refusing action on the nomination. Given how clearly he lays it out, I don't understand why he thinks the Senate isn't entitled to consider the political realities of the nomination.