04/21/2016

Strategy and Originalism
Mike Rappaport

Over at the Liberty Law  Forum, Stephen Smith has an essay entitled Saving Originalism from Originalists.  Smith’s article raises an extremely important issue: How do originalists cause the Supreme Court Justices to follow the original meaning of the Constitution?  This is a difficult question.  Smith powerfully argues that a strategic perspective is a useful way of thinking about the problem.  Relying on this perspective, Smith argues for what he calls a strategic originalism.  I respond to Smith’s argument here.

I have also thought about strategic considerations.  I discuss one strategy for promoting originalism in my response to Smith:

Perhaps the biggest obstacle to securing support for originalism derives from the differing views of this interpretive approach from the Right and the Left. On the Right, originalism is seen as a constraint on judges’ imposing their values on the nation through judicial decisions. . .   [Those] on the Left does not see originalism as a protection against values imposed by those who disagree with them.

This Leftwing view of originalism is in part the result of the principles advocated by Rightwing  justices. Justices on the Right state that they will enforce the Constitution’s original meaning, not their own conservative or libertarian values. As a result, people on the Left do not fear Rightwing justices claiming to impose their own values.

But imagine if Rightwing justices sought to impose their own values on the Constitution—if, for example, conservative justices sought to prohibit abortion nationwide through constitutional interpretation rather than simply arguing that the Constitution permitted the states to decide the question. In this situation, the Left . . . would have to worry about judicial imposition of the Rightwing political agenda.

Under those circumstances, the Left might actually view the Constitution’s original meaning as protection, just as the Right does now.

How then might the Right get the Left to view originalism as protection?

An effective strategy from the Right might then seem to require that the Rightwing justices threaten to engage in judicial activism unless the Leftwing justices choose to follow the original meaning.

One possible way for the Rightwing justices to carry out their threat is by announcing in their dissent to the nonoriginalist decision that they will henceforth interpret this constitutional provision in a nonoriginalist way. If the liberal justices adopt the originalist interpretation of this provision in the future, however, then the Rightwing justice will conform to the original meaning as well.

While this would have some benefits, ultimately I recommend against this strategic approach:

It seems unprincipled for originalists not to follow the original meaning simply because nonoriginalists do not follow it. One of the most powerful advantages that originalists have is that they appear to be principled—they are seeking to consistently follow an intuitively attractive theory. If they behaved in an unprincipled way and pursued their own values, they would lose much of their appeal.

It is true that the originalists could argue that they are simply responding to the nonoriginalists’ behavior, and doing so in order to promote originalism. But I do not think this argument would be terribly persuasive. Instead of pursuing originalism, the originalists would now be pursuing nonoriginalism part of the time, which is a problematic way of promoting originalism. And it is by no means clear that the Constitution’s original meaning permits them to engage in this strategy.

In addition to Smith’s essay and my response, there is also the interesting response by the always engaging Gordon Lloyd and a soon to be posted response by Mike Greve.

Josh Blackman on the U.S. v. Texas Oral Argument
Michael Ramsey

At NRO, Josh Blackman: Obama Asks the Supreme Court to Rewrite His Immigration Policy.  

On November 20, 2014, President Obama announced the policy known as Deferred Action for Parents of Americans (DAPA). This executive action purported to rely on “prosecutorial discretion” to defer the deportations of up to 5 million aliens and grant them work authorization and other federal benefits. Critically, the memorandum announcing DAPA included this sentence: “Deferred action does not confer any form of legal status in this country, much less citizenship; it simply means that, for a specified period of time, an individual is permitted to be lawfully present in the United States.” (Emphasis added.)

Herein lies the conundrum: Aliens who receive relief under DAPA do not have “any form of legal status,” but at the same time they are “lawfully present in the United States.” During oral arguments in U.S. v. Texas, a perplexed Chief Justice Roberts asked Solicitor General Donald Verrilli this question: Is it the government’s position that “lawfully present does not mean you’re legally present”? Verrilli responded, “Correct.” A stunned Justice Alito stated that he didn’t “understand” how that was possible in light of the “English language.”

...

Recognizing resistance from the justices, Verrilli said, “If the Court thinks it’s a problem and wants to put a red pencil through [‘lawfully present’], it’s totally fine.” He expressly asked the justices to rewrite the Obama administration’s own policy, as if the justices were the president’s copy editor.

Professor Blackman doubts this is the Court's job:

Finally, if the DAPA memorandum is so problematic, and it should not have awarded “lawful presence,” absolutely nothing is stopping the president from issuing a new policy. During oral arguments, Justice Kagan stated, “It’s [the government’s] memorandum.” That’s exactly right. The government gets to interpret it or rewrite it whenever they wish. The Department of Homeland Security could have issued a new policy — minus “lawful presence” — in February 2015 after a federal court put DAPA on hold. Or they can do so now. Absolutely nothing prevents them from doing so. Secretary Johnson — who was sitting in the first row of the Court’s gallery — could have signed a new memorandum on the spot, deleting the “lawfully present” language.

The executive branch does not need the Court to do its dirty work. Or maybe the government is telegraphing what it will do if it loses this case — simply reissue the exact same memorandum, absent the phrase “lawfully present” — so it can implement the policy before the election. If this is indeed the plan, the Supreme Court should make clear that this further evasion of the separation of powers won’t work.

Aziz Huq & Jon Michaels: The Cycles of Separation-of-Powers Jurisprudence
Michael Ramsey

Aziz Z. Huq (University of Chicago Law School) & Jon D. Michaels (University of California, Los Angeles School of Law ) have posted The Cycles of Separation-of-Powers Jurisprudence (Yale Law Journal, Vol. 126, 2016, forthcoming) on SSRN.  Here is the abstract:      

The Supreme Court’s approach to the Constitution’s separation of powers is a puzzle. Although all Justices appear to agree on the doctrine’s goals, in almost every important line of cases the Court oscillates between two basic approaches of hard-edged rules and open-textured standards. Its seemingly erratic shifts cannot be wholly explained by changes in the bench’s personnel or methodological fads. This Article isolates and analyzes pervasive doctrinal cycling between rules and standards as a distinctive element of separation-of-powers jurisprudence. Breaking from previous scholarship critical of the Court’s zigzagging, we consider whether purposeful cycling between rules and standards might be justified as a judicial strategy for implementing the separation of powers. We develop a new theoretical account of the separation of powers in which doctrinal cycling can be justified on two key assumptions: First, the separation of powers promotes a plurality of normative ends, and second, it does so in the context of a more heterogeneous institutional environment than a focus on the three branches alone would suggest. Doctrinal cycling between rules and standards could be used, at least in theory, to manage normative pluralism and police this “thick political surround” when simpler, more straightforward regulatory strategies would fail. This rational reconstruction of the feasible judicial role in the separation-of-powers context provides a benchmark for evaluating observed doctrinal oscillations, and, more generally, determining whether courts possess the necessary institutional resources to promote separation-of-powers values.

04/20/2016

A Textual Approach to Treaty Non-Self-Execution, Revised
Michael Ramsey

I have posted a revised version of my article A Textual Approach to Treaty Non-Self-Execution (2015 BYU L. Rev. 1639, forthcoming) on SSRN.  The revisions principally clarify the argument in response to comments and add a section assessing some representative recent self-execution/non-self-execution cases.  The central point of the latter is that the self-execution/non-self-execution distinction is not as hard as commentators seem to think it is.

Here is the abstract:

Conventional wisdom holds that the doctrine of non-self-executing treaties in the United States is conceptually confused and textually unjustified. This article disagrees. It argues that a coherent, text-based approach to non-self-execution is available and consistent with the Constitution’s text and with the Supreme Court’s leading non-self-execution decision, Medellin v. Texas.

To reach a satisfactory textual grounding for non-self-execution, it is necessary to reject two central ideas in leading non-self-execution dicta and commentary. The first is that non-self-execution means that some treaties are not supreme law of the land (or, as it is sometimes said, not part of federal law). As discussed below, that is not a possible reading of the Constitution’s text, which says that “all” treaties are the supreme law of the land (apart from treaty provisions that conflict with superior forms of law). The second is that the unilateral intentions or preferences of U.S. treatymakers can, without more, make a treaty unenforceable by courts. As discussed below, unilateral intentions and preferences cannot change the constitutional direction that judges “shall be bound” by treaties.

Rejecting these two propositions does not, however, reject the idea of non-self-executing treaties. This article understands “non-self-executing” to describe a treaty provision that does not of its own force provide a rule of decision for a U.S. court. This result may arise in various ways, but they share a common characteristic: the treaty provision calls for an action that, in the U.S. constitutional system, is not appropriate for courts to take. In this situation, the court is directly or implicitly instructed by the treaty’s text not to implement the treaty unless another branch provides guidance. Because the treaty is binding on the courts, this direction – contained within the treaty – is also binding on the courts. As a result, non-self-execution arises from the treaty’s text in combination with the U.S. understanding of the court’s judicial power.

This article attempts to outline the textual approach to non-self-execution in a relatively brief and summary form, relying on extensive scholarship on the Constitution’s text and history relating to non-self-execution. As such, it is designed as a “restatement” of textual approaches developed in part by others but presented here in a more simplified manner. Part I of the Article sets forth the basic constitutional rules. Part II explains how non-self-execution arising from a treaty’s text is consistent with the Constitution’s categorical rules on treaties’ status as law. Part III argues that the Court’s opinion in Medellin is consistent with a textual approach to non-self-execution.

Larry Solum on Constraint and Restraint
Michael Ramsey

At Legal Theory Blog, Larry Solum's Legal Theory Lexicon tackles Restraint and Constraint in Constitutional Theory.  Here is the introduction:

The idea that judges should not unduly interfere in decisions made by the political branches is a familiar trope in both popular discourse about the Constitution and in constitutional theory.  One aspect of this idea connects with the notions of "judicial activism" and "strict construction" that are discussed in a previous Legal Theory Lexicon entry.  Another aspect of this discourse concerns the ideas of judicial restraint and constraint.

One of the difficulties with discussion of restraint and constraint is that these ideas have been imprecise and ambiguous.  Is restraint simply inaction?  Or does constraint have to do with the idea that courts should be bound by the constitution?  These two notions are not the same.  The constitution might require action that interferes with the political branches, but it might require inaction as well.

Thomas Colby has made a metalinguistic proposal to sort out the potential confusion.  Here is the way he put the suggestion:

(“[A]lthough originalism in its New incarnation no longer emphasizes judicial restraint--in the sense of deference to legislative majorities--it continues to a substantial degree to emphasize judicial constraint--in the sense of promising to narrow the discretion of judges. New Originalists believe that the courts should sometimes be quite active in preserving (or restoring) the original constitutional meaning, but they do not believe that the courts are unconstrained in that activism. They are constrained by their obligation to remain faithful to the original meaning.”).

Thomas B. Colby, The Sacrifice of the New Originalism, 99 Geo. L.J. 713, 751 (2011).  Colby's idea is that we can stipulate that "restraint" refers to deference and that "constraint" refers to the a requirement of consistency with the constitutional text.

The remainder of this Lexicon entry develops Colby's proposal. [Ed.: with a helpful matrix].

I agree with Professor Colby's terminology, as does Professor Solum.  Note that originalism calls for constraint but does not necessarily require (or even allow) restraint.

04/19/2016

Andre LeDuc: The Ontological Foundations of the Debate Over Originalism
Michael Ramsey

Andre LeDuc (independent) has posted The Ontological Foundations of the Debate Over Originalism (7 Washington University Jurisprudence Review 263 (2015)) on SSRN.  Here is the abstract:    

Because the participants in the debate over constitutional originalism generally understand the controversy to be over a matter of the objective truth of competing interpretations of the Constitution, they do not believe that their mission is to persuade the other side. When what is at stake is a matter of objective truth, subjective opinions are of less moment.

This Article begins the long overdue transcendence of our increasingly fruitless and acrimonious debate over originalism by articulating the tacit philosophical premises that make the debate possible. It demonstrates that originalism, despite its pretensions to common sense and its disavowal of abstruse philosophical analysis, is tacitly committed to three key ontological and linguistic premises. First, language represents the world. Second, propositions or statements are true if they accurately (truly) represent that world. Thus, propositions of constitutional law represent the constitutional world. As a consequence, propositions or statements of constitutional law are true if they accurately (truly) represent that constitutional world. Third, there is an ontologically independent Constitution that our constitutional interpretation describes. For the originalist, that objective Constitution is the semantic understanding of the constitutional provisions when they were originally adopted or amended. Moreover, surprisingly, originalism's critics are also committed to these same premises about the nature of language, the nature of truth and the existence of an objective Constitution. Originalism's critics assert that the objective Constitution has sources beyond the original understanding of its provisions.

These shared premises about the nature of language and the nature of the Constitution permit the debate over originalism to proceed as a debate about the objective truth of constitutional interpretations and the accuracy of each side's description of the objective facts about the Constitution. Because both sides of the debate believe there to be an objective answer to the questions they address, the debate can focus upon defending the account of the relevant interpretation rather than on persuading the other side. Understanding that fundamental dynamic to the debate helps explain why it has been so unproductive. Moreover, understanding that the debate over originalism is only possible if these premises are true highlights the underlying question whether such premises are indeed correct.

Also from Andre LeDuc : The Anti-Foundational Challenge to the Philosophical Premises of the Debate Over Originalism (Penn State Law Review, Vol. 119, No. 131, 2014).  Here is the abstract:      

The seemingly interminable tacit assumptions about the nature of language and the ontological status debate over originalism is grounded on of the Constitution. It assumes that language represents the world, that the Constitution is something that has an ontologically independent existence, and that propositions of constitutional law are true if they accurately represent the objective Constitution. This Article offers a radical critique of those apparently obvious, commonsensical premises. It presents an anti-representational, anti-foundational challenge to the premises underlying the debate over originalism.

First, building on the work of Richard Rorty and Robert Brandom in philosophy and Philip Bobbitt and Dennis Patterson in jurisprudence, it outlines how we might move beyond the notion of an ontologically independent, objective Constitution. The alternative is to understand our Constitution as constituted by our constitutional practices, particularly our practices of constitutional argument and decision. Second, this Article offers an analysis of propositions of constitutional law and their truth, that explains such statements without the notion of representing the objective Constitution and without the notibn that the truth of such proposition is a matter of the accuracy of the representation by such statements. Third, this Article presents and rebuts the arguments that might be made against such an approach. It concludes by showing how, in the face of this analysis, the tacit premises of the debate over originalism collapse and with them, the debate over originalism as we know it.

04/18/2016

Ken Masugi on Justice Thomas on Evenwel
Michael Ramsey

At Liberty Law Blog, Ken Masugi: Justice Thomas: Mr. Republican.  From the introduction:

Once again Justice Clarence Thomas has given originalist jurisprudence its most robust defense through his revival of an obscure part of the U.S. Constitution.

In 2010, in McDonald v. Chicago, he had protected the right to individual gun ownership by invoking the Fourteenth Amendment’s Privileges or Immunities Clause. Now he has concurred in the decision in Evenwel v. Abbott (2016), which unanimously affirms the state of Texas’ use of population (rather than being required to use eligible voters) as the basis for devising electoral districts.

Thomas’ bold concurring opinion, reviving as it does Article IV’s guarantee that each state shall have a republican form of government, opens up a vast field of possibilities for thinking about apportionment but also about free government generally. His aim in directing us to this clause is ultimately to build a more powerful case against the unconstitutional administrative state, the suppressor of separation of powers, federalism, and basic republican principles. Even more provocative is the basis he sees for the Republican Government Guarantee Clause: the Declaration of Independence.

For a thoughtful different view, Michael Dorf: Justifying One Person One Vote.

04/17/2016

United States v. Texas on Monday (with Comment from Marty Lederman)
Michael Ramsey

The Supreme Court will hear arguments in United States v. Texas on Monday, April 18. Here is Lyle Denniston's preview of the case for SCOTUSblog.  At Defining Ideas, Michael McConnell assesses the case with sympathy for the challengers and an extensive historical discussion, concluding: 

Apart from its subject matter, the executive action challenged in this case precisely parallels James II’s use of the dispensing power. The Immigration and Naturalization Act defines persons who entered this country without authorization and do not fall into any of its specific exceptions as being here unlawfully. That includes the beneficiaries of the DAPA order. Among the consequences of unlawful presence are ineligibility for work permits and for many social welfare programs. Moreover, the INA expressly provides that every day a DAPA beneficiary spends in the United States should accrue as time under the individual’s unlawful-presence clock. These consequences were set by Congress for the purpose of discouraging illegal immigration. And unlike deportation, which necessarily involves enforcement discretion, these consequences are absolute—unless there is an explicit statutory exception, these consequences apply to every person in this country unlawfully.

Under the DAPA rule, some four million people who are unlawfully present in the United States under the statute have been given the dispensation to remain and to obtain work permits and social welfare benefits. Their unlawful-presence clocks do not run. This is not mere non-enforcement. It is not an exercise of prosecutorial discretion. It is not a matter of enforcement priorities. Like James II’s dispensations, DAPA permits “an individual . . . to be lawfully present in the United States,” notwithstanding the INA’s provisions to the contrary. Until such time as it might be revoked, its beneficiaries are no longer in violation of the law. Because the executive officials who promulgated DAPA are acting outside their statutory authority, and are making lawful what Congress has declared unlawful, they are in violation of the Take Care Clause of Article II.

In the New Republic, Simon Lazerus has a different view: Even Conservatives Agree on Obama’s Immigration Powers. Will the Supreme Court?  He points out:

Prominent conservative legal scholars and experts know that, as George Mason scholar and Obama critic Ilya Somin wrote at Volokh Conspiracy, “Obama’s decision to defer deportation is in line with those of past presidents, and well within the scope of his authority.” In Washington Examiner, Shikha Dalmia reminded “conservatives outraged” at the administration’s initiative that “whether they like it or not, existing immigration laws give the president vast discretion to temporarily legalize an unlimited number of foreigners.” University of Virginia professor Saikrishna Prakash, a former law clerk for Justice Clarence Thomas and a prominent specialist on separation of powers and presidential authority, has unequivocally stated that “President Obama has not suspended or dispensed any law” and “not violated his faithful execution duty.” In the same vein, on Volokh, Case Western Reserve Professor Jonathan Adler—architect of the potentially crippling challenge to ACA tax credits rejected last year in King v. Burwell—explained that, in “[i]mmigration law ... Congress has given the executive wide latitude.” (Adler signed a friend-of-the-court brief supporting the anti-DAPA challengers’ standing to bring their suit, but not their claim, on the merits that DAPA is unlawful.)

His key paragraph is this one, though:

Finally, opponents impugn DAPA because the new program authorizes its beneficiaries to apply for work authorization. But the authority for deferred action recipients to work, enroll in Social Security, and receive certain other work-related benefits comes not from DAPA, but from Reagan administrationregulations subsequently endorsed by lopsided bipartisan congressional majorities in 1986 legislation. Shortly thereafter, the Reagan administration denied a request to repeal its employment authorization regulation and it has since then been available to, and repeatedly used by, recipients of deferred action treatment, such as those covered by DAPA.

He notes two other main attacks on DAPA that I agree are unpersuasive.  But this one strikes me as the potentially decisive one, and it directly engages Professor McConnell's main point. If DAPA changes peoples' legal status, as Lazarus seems to concede it does, then it must have direct authorization by statute (mere invocation of prosecutorial discretion isn't enough).  But if it does have direct authorization by statute, that should be an answer to Professor McConnell's objection, and should be sufficient to uphold the policy.

RELATED:  Here (via Josh Blackman) is an originalist-oriented amicus brief filed in support of the challengers, from Josh Blackman, Randy Barnett, Ilya Shapiro, Jeremy Rabin and the Cato Institute.  From the core of the argument:

For two primary reasons, DAPA is inconsistent with the president’s duty to take care that the laws be faithfully executed. First, the circumstances that gave rise to DAPA demonstrate that it is not a good-faith exercise of prosecutorial discretion, but instead a blatant effort to nullify a law that the president sought unsuccessfully to repeal.

Second, DAPA is not an execution of the law, but amounts to a legislative act: the granting of lawful presence to a class of millions to whom Congress expressly denied that status. Further, DAPA is not consonant with congressional policy, nor has Congress acquiesced in it. On the contrary, it is a “measure[] incompatible with the expressed . . . will of Congress.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring). Ordinarily, this would mean that the president could “rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” Id. But as Congress has virtually the entire power at issue here—and there are no claims of inherent executive power—that leaves the President with nothing.

Again, it seems to depend on whether Congress has authorized the granting of "legal status" (whatever that means) or not.

UPDATE:  Josh Blackman has  further interesting post here: SG: “Lawful Presence” is really “Tolerated Presence”.

FURTHER UPDATE:  Marty Lederman comments:

Michael McConnell offers a very nice historical distillation demonstrating what no one (least of all the President) denies -- namely, that the President doesn't have a dispensation power to render lawful conduct that is unlawful, or to authorize others to violate the law. 

But DAPA doesn't do any such thing, and so the entire argument is premised on a mistake of law.  For greater (perhaps excruciating) detail, see here.
 
I also have a post on the standing question that may well be dispositive, here.

04/16/2016

Bernadette Meyler: The Politics of the Declaration of Independence Before the Civil War
Michael Ramsey

Bernadette A. Meyler (Stanford Law School) has posted Between the States and the Signers: The Politics of the Declaration of Independence Before the Civil War (Southern California Law Review, forthcoming) on SSRN.  Here is the abstract:      

It is almost impossible to conjure the thought of the Declaration of Independence today without also raising the specters of the signers. Commonplace invocations of “John Hancock” stand in for the prototypical signature, and elementary school children throughout the country learn details about the lives of the signers. The signers did not, however, authorize the Declaration solely for themselves, but rather on behalf of the “People.” 

At the same time as autograph collectors began accumulating the signatures of the signers of the Declaration of Independence in the early nineteenth century, the political contest over the “People” of the United States drew the Declaration into its arguments. Controversy focused, in particular, on whether this people could be considered united from the Declaration onwards or consisted in the people of the several states. Drawing on two periods when discussions of the Declaration came to the fore, this Symposium Article contends that the figure of the signers — and their signatures — became a crucial weapon in a battle over which people had authorized not only the Declaration but also the U.S. Constitution.

(Via Dan Ernst at Legal History Blog).

04/15/2016

A Response to Gregory Diskant on Appointments
Seth Barrett Tillman

Gregory L. Diskant’s theory—that, after 90 days, in the absence of concrete Senate action, the President can act alone and appoint Judge Garland to the Supreme Court—does not pass constitutional muster.

First, “Diskant’s” theory is—when all is said and done—Professor Matthew C. Stephenson’s theory. In 2013, in Yale Law Journal, Professor Stephenson, of Harvard Law School, argued that Senate inaction worked a waiver or implied consent subject to a 90-day rule of thumb.  See Matthew C. Stephenson, Can the President Appoint Principal Executive Officers Without a Senate Confirmation Vote?, 122 Yale L.J. 940, 973 (2013) (“I would not extend this proposal to judges; for judicial appointments, it would make more sense to read ‘Advice and Consent’ as requiring an affirmative confirmation vote.” (emphasis added)); id. at 941–43 (explaining that theory of implied consent does not apply to appointments to the federal judiciary); id. at 971 n.98 (citing Seth Barrett Tillman’s scholarship). But Stephenson squarely stated that his theory, to the extent it worked at all, only worked for Executive Branch positions, and not in regard to judicial appointments, including Supreme Court appointments.

The second reason “Diskant’s” position fails is that it relies on an analogy to waiver in the context of litigation adjudicating individual rights.  See generally Letter from Seth Barrett Tillman to Professor Anonymous, The Quorum Clause (July 2, 2014), available at http://ssrn.com/abstract=2462012 (discussing which constitutional rules and standards are subject to waiver)).  But neither Senate action nor inaction implicates any individual rights. Therefore the analogy fails. If the House passes a bill, even a money bill which must originate in the House, and the Senate wholly fails to consider the bill, who in his right mind believes the House and/or President can construe the House bill as a proper federal statute, and then proceed to implement the bill as if the bill had also passed the Senate? To put it another way, generally, constitutional procedures restricting public bodies cannot be waived precisely because the interests they protect do not belong to the institution, but exist to protect the public. In short, Senate inaction cannot waive actual advice and consent.

The third reason “Diskant’s” position fails is because it was rejected by Marbury v Madison and all subsequent legal authority (at least, until Professor Stephenson’s article). In Marbury, Chief Justice Marshall, writing for a unanimous Supreme Court in 1803, characterized the nomination and appointment process as “completely voluntary” and “voluntary,” respectively.  See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 155 (1803) (Marshall, C.J.).  Likewise, in 1999, the Clinton Justice Department’s Office of Legal Counsel issued a memorandum which characterized every step of the nomination and appointments process as “discretionary.” This memo expressly included Senate advice and consent.  See Appointment of a Senate-Confirmed Nominee, Vol. 23 Opinion Office of Legal Counsel, page 232 (1999) (Koffsky, Acting Deputy Assistant Attorney General).  If something is “voluntary” or “discretionary,” it means you don’t have to do it. After more than 200 years of unbroken practice requiring actual affirmative Senate consent before the President may make a lifetime appointment to the federal judiciary, it is now too late in the day to play let’s pretend, and to impose an arbitrary and fixed 90-day time limit on Senate action. Such time limits have no support in the Constitution’s text, and, if for no other reason, that should end the legal discussion. Of course, if the American People believe the President or Senate have erred politically, then that wrong can be corrected at the next regular election—and only in that manner.

Finally, the same 1869 federal statute which mandated a 9-member Supreme Court has also established a quorum of only 6 members. See Act to Amend the Judicial System of the United States, ch. 22, § 1, 16 Stat. 44, 44 (1869), codified at 28 U.S. Code § 1. Thus, there is no rush to fill any Supreme Court vacancy, in spite of the fact that some future cases might end up tied 4-to-4. Given that Congress has set a quorum of 6 members, it stands to reason that Congress expected some Justices: to recuse themselves in specific cases; to take temporary leave to fulfil other government duties; to recuperate for a reasonable time if ill; and to die.  (Consider Justice Jackson was on leave from the (9-member) Supreme Court, when he appeared as Chief U.S. prosecutor at the Nuremberg trials. Was deadlock a consideration during his absence? Likewise, consider that President Washington appointed Chief Justice John Jay envoy to Great Britain. Jay accepted the diplomatic post, but he did not resign from the Supreme Court until after he negotiated the so-called Jay Treaty (signed Nov. 1794; ratified 1795). See Notice of John Jay's Powers (1794) [here]; Jay Treaty (signed 1794) [here].)  The Court, as a functioning institution, goes on, at least, as long as it has 6 members, and surely Congress must have understood that a 6 or 8 member Court can deadlock.  Cf. Michael Ramsey, here (“Actually, while the Constitution creates the Supreme Court, Congress creates the ninth seat on the Court. Just as Congress could constitutionally abolish the lower federal courts, it could constitutionally abolish the ninth seat on the Court.”)  Indeed, historically, there have been lengthy periods of time where the Court, by statute, was expressly composed of an even number of members. For example, when Chief Justice John Marshall was appointed to the Supreme Court, its size was set to 6 members by statute. To the extent worries about deadlock are a consideration, it is a political consideration for the American People, not a legal consideration, constitutional or otherwise.

(Cross -posted at the New Reform Club.)

MIKE RAMSEY ADDS:  Not to pile on, but Garrett Epps at The Atlantic writes:

[Diskant's argument] does not simply torture the Constitution’s text and history, it waterboards it. The words “advice and consent” in Article I of the Constitution may seem vague, but in context, they aren’t. Senate confirmation is required not only for judges, but for “Ambassadors, other public Ministers and Consuls … and all other Officers of the United States, whose Appointments are not herein otherwise provided for.” Even a Senate working in good faith could not necessarily confirm every presidential nominee within a fixed time period, and the text sets no deadline for these appointments. Elsewhere, the Framers did provide deadlines: For example, neither house of Congress may “without the Consent of the other, adjourn for more than three days.” A bill sent to the president for signature will become law unless he signs or vetoes it “within ten days (Sundays excepted).” Presidents also have the “power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” The Framers understood deadlines, and they neither set one, nor implicitly granted the president power to set one, for confirmation.