« Richard Primus: Thoughts on William Baude's 'Is Originalism Our Law?'
Michael Ramsey
| Main | Seventh Originalism Works in Progress Conference
Mike Rappaport


Law Professors' Letter on Supreme Court Appointments
Michael Ramsey

As Ed Whelan noted last week, some 350 law professors have signed a letter expressing the view that the Senate has an obligation to consider individually any nomination to the Supreme Court made by the President.  (There was also an earlier letter, available here; I am not sure of the relationship between the two).  He is not kind to its arguments, and I agree.

The letter is five paragraphs long.  The only paragraphs of constitutional substance are these:

The Senate’s obligation in this circumstance is clear. Under Article II of the Constitution, the president “shall appoint . . . judges to the Supreme Court,” and the Senate’s role is to provide “advice and consent.” Yet before the president has even made a nomination to fill the current vacancy, a number of senators have announced that they will not perform their constitutional duty. Instead, they plan to withhold advice and consent until the next president is sworn in nearly a year from now. This preemptive abdication of duty is contrary to the process the framers envisioned in Article II, and threatens to diminish the integrity of our democratic institutions and the functioning of our constitutional government.

President Obama was elected to a four-year term in 2012. According to the Constitution, that term has more than 300 days remaining. There is no exception to the Constitution holding that the president lacks the authority or duty to appoint justices to the Supreme Court because he is in the last year of his presidency. In fact, six justices have been confirmed in presidential-election years since 1900, including Louis Brandeis, Benjamin Cardozo, and Republican-appointee Anthony Kennedy, who was confirmed by a Democratically-controlled Senate during President Ronald Reagan’s last year in office.

To restate and expand my previous post on this subject:

(1)  The letter appears to say that the Senate has a "constitutional duty" to "provide 'advice and consent.'"  Obviously this is not true.  I might agree that the Senate has an implied constitutional duty to provide advice.  It does not (of course) have a constitutional duty to provide consent.  It can withhold consent it it wants to.  The core role of the Senate in checking appointments is to not provide consent if it thinks the appointment is ill-advised.

(2)  The letter's first claim is that the Senate has violated its constitutional duty to provide advice.  I think this is a plausible implied duty.  The President is arguably entitled to hear what the Senate thinks on the matter.  My guess is that in the pre-1787 states' executive councils, which were the model for the Senate's advice-and-consent role, the council was under an implied duty to give advice when the executive asked.  But even assuming this is true, the Senate has provided the advice, through the Majority Leader and Chair of the Judiciary Committee, that the vacancy not be filled until after the election.  (The President is of course free to ignore that advice).

There are two possible responses, neither viable.  One could argue that the Senate must act formally to give advice as a body, not through designated officers.  But the Senate is constitutionally entitled to make its own rules, so it can make rules regarding how its advice is determined and conveyed to the President.  Or one could argue that the Senate's advice must be individualized to particular nominee.  But nothing in the Constitution says this, and common sense is against it.  The Senate's advice might (as in this case) go not to the fitness of any particular nominee but to the timing or the advisability of the enterprise as a whole.  For example, if a friend asked me which horse to bet on in a particular race, I might advise him that betting on horses has poor overall odds and not to do it.  Or I might advise him that gambling is a bad idea at least until he has quite a bit of money to spare.  These points are not individualized to any particular horse, but they are still advice.  Similarly, the Senate's advice here is focused on timing and the advisability of the enterprise (appointing prior to the election), not on any individual, but it is no less advice.

The letter instead simply asserts that the Senate is "withhold[ing] advice."   It offers no explanation why the advice given (let the next President decide) isn't advice.  I can't think of any.

(3) The letter's second claim is that the Senate is "withhold[ing] consent."  Since the Senate obviously has constitutional power to withhold consent if it chooses, the argument must really be that the Senate has a constitutional duty to express its lack of consent in a floor vote.  (This is made more clear in the earlier law professor letter).  What is the constitutional basis for this claim?  The letter doesn't say, and I can't think of one.  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.

There might also be an implicit argument that the Senate can withhold consent only on the basis of an individual's lack of qualifications, not on a generalized objection to making an appointment at this time.  (That seems to be the point of the second quoted paragraph.)  This also seems wrong.  I don't think the Senate is making the categorical argument that the President isn't entitled to make a nomination in his last year in office.  (If the Senate were making this argument, clearly it would be wrong).  Rather, I think the Senate's argument (that is, their advice) is that, with the country closely divided, the Supreme Court closely divided, and resolution of so many key political issues now depending on the Court's determination, it would be better under  the circumstances to await the result of the election.  Perhaps there is some basis for saying that a conclusion based on circumstances rather than a conclusion based on individual qualifications is inappropriate, but it's not apparent from the Constitution's text and the letter doesn't invoke other sources.  The Constitution's text makes no reference to the basis for withholding consent, so it seems that the Senate can withhold consent on any grounds.

(4)  In sum, the Senate is advising the President that the appointment should wait until after the election, and if the President disregards that advice (as he is entitled to do), then the Senate will (it says) withholding its consent (as it is entitled to do).  There isn't any constitutional problem, and the letter does not even make a serious argument to the contrary.

(5) The letter goes on (after the quoted paragraphs) to make policy arguments about why having a long Supreme Court vacancy is a bad idea.  These may be correct.  But they are irrelevant to the Senate's constitutional duty.  As Ed Whelan has repeated several times, there is only one appointments clause.  The Senate's duty to act on Supreme Court nominations is the same as its duty to act on any other nominations.  If the framers had thought the Supreme Court was a special case, they would have provided for it specially.  As it is, for constitutional purposes, the Senate has the same role as in other nominations: to provide advice (in the manner it chooses) and to give or withhold consent (in the manner it chooses).

RELATED:  Noah Feldman (with whom I don't usually agree) makes a somewhat similar argument here.  He writes:

As for the Senate’s “advice and consent,” it’s hard to argue that this requires the body to put a nominee to a vote. The Senate has essentially complete control over its own rules and practices. Most prominently, it has long used the filibuster, which is a rule of procedure that deviates from the principle of majority rule. You might think the filibuster is undemocratic and unconstitutional, but you can’t do anything about it, because it’s up to the Senate to decide how to operate.

Given this self-control, the Senate certainly possesses the de facto authority to refuse to confirm or even consider a nominee. 

I would strike "de facto."  The Senate has de jure (formal) authority to "refuse to confirm or even consider a nominee."  

He goes on to say:  "This would amount to reducing the number of justices on the court -- but that, too, is within Congress’s control."  Well, no, on two counts.  First, it does not amount to reducing the number of Justices, because the Senate isn't saying it won't ever consider a nominee; it is only saying let the next President make the nomination (in less than a year).  Second, if the Senate were saying in effect that the number of Justices should be lowered, it would be absolutely totally irrelevant that Congress has the power to reduce the number, because the Senate is not Congress.  (But the Senate isn't saying that).

Vikram Amar also has a post in general agreement on the Senate's constitutional duty (though he thinks refusal to consider a nominee is a bad idea).  This is an excellent point:

If we look at other constitutional settings in which one entity must consent to the proposal of another actor before the proposal can take legal effect, we have as a general matter not inferred any duty on the part of the second actor to do anything. For example, no credible argument can be made that after the House of Representatives passes a bill and sends it to the Senate for consideration, the Senate must hold hearings and/or take votes. Or that the Senate has a duty to take up a treaty desired by the president. Or that state legislatures have a duty to debate and vote on federal constitutional amendments that Congress proposes (and that require ¾ of the states to ratify before they can take effect). In fact, in one place the Constitution does seem to create a duty on the second actor to make an up-or-down decision; if the president does not return a bill passed by Congress to Congress with reasons for his veto within 10 days, the bill becomes law. So when the Constitution seeks to attach some legal consequences to inaction within a particular timeline, it seems to know how to say so.

Exactly. I feel a little bad for the law professors that signed the letter. I suspect they did not think about it too carefully.