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03/21/2016

Seth Barrett Tillman on the President's Duty to Nominate
Michael Ramsey

At the New Reform Club, Seth Barrett Tillman: Does the President Have A Duty To Nominate Supreme Court Candidates? Does the Senate Have A Duty To Consider Nominees?  He makes three characteristically interesting points, with which I agree in part and disagree in part.

(1) Professor Tillman writes:

There is some recent discussion on The Originalism Blog on the purported duty of a President to nominate persons to Supreme Court vacancies, and on the purported duty of the Senate to consider nominees in its (the Senate’s) advice and consent role.

Much of this discussion focuses on the Constitution’s use of “shall,” and that discussion further assumes that “shall” is mandatory. The widespread view in modern statutory interpretation that “shall” expresses a mandatory command does not easily cohere with 18th century constitutional drafting and 18th century American-English usage. Some years ago my co-author & I have a four-page paper on this subject. See Nora Rotter Tillman & Seth Barrett Tillman, A Fragment on Shall and May, 50 American Journal of Legal History 453 (2010) (peer reviewed). 

As my co-author & I explain, “shall” sometimes indicates mere futurity. It is easy to forget that the Constitution was drafted in 1787. Ratification took place in 1787 and 1788: all prior to the first meeting of the First Congress (post-Articles of Confederation) in 1789. “Shall” in this 1787 document, in some clauses, merely meant who or which body would act in the future or be empowered to act in the future once the new Constitution (our Constitution) and government went into operation. The idea that “shall” was meant as a command in every clause where it was used is under theorized. ...

I agree strongly with the basic premise. "Shall" in the Constitution is sometimes a directive and sometimes just describes an event (sometimes in the same sentence).  It addition to Professor Tillman's examples, how about this from Art. I, Section 7: "If any Bill shall not be returned  [to Congress] by the President within ten days ... the Same shall be a Law .. "  (obviously the first describes an occurrence while the second is a command).  

But I think "shall" in the appointments clause is a directive, consistent with other parallel uses of "shall" in Article II, Sections 2 & 3 (the President "shall" be commander in chief; he "shall" have power to grant pardons and to make treaties; he "shall" give information on the State of the Union; he "shall" receive ambassadors; he "shall" take care that the laws are faithfully executed; he "shall" commission officers").  I would say that all of these describe either a power the President must have (chat is, can't be taken away by Congress) or things he must do. In contrast, in other places in these two sections, it says that the President "may" do things: he "may" ask for written opinions, he "may" convene Congress, he "may" adjourn Congress (and Congress "may" allow appointment of inferior officers other than by Senate consent).  Thus the President "shall" (not "may") nominate.

(2) He next observes:

I also see some discussion suggesting that the Senate has told the President not to nominate anyone or that the Senate has told the President to send over no nominees, and further suggesting that in doing so the Senate has defaulted on its duty. I know of no proceedings by the Senate—as a collective body—taking any such course of action. I know of no order, resolution, or vote (per Article I, Section 7, Clause 3) committing the Senate to rejecting the President’s current or future Supreme Court nominees. The position of individual senators (even if in the leadership) makes for good politics, but it does not answer the question of whether the Senate has acted in good faith and in compliance with the law of the Constitution, its norms, aspirational purposes, and historical conventions.

I think communications from leadership (and most importantly, from leadership whom the Senate empowered, at least in the first instance, to make the critical decisions on hearings and votes) counts as advice from the Senate.  The leadership purports to be speaking for the Senate, not as individual Senators.  I see no requirement that the advice be given through a formal vote (it is not covered by Article I, Section 7 because it is not an "Order, Resolution or Vote to which the Concurrence of the Senate and House of Representatives may be necessary").  But I don't think this advice represents a default by the Senate in its duty (as discussed here).

(3) Finally, Professor Tillman says: 

The position that a President has a duty to put forward a Supreme Court nominee is narrowly elitist and overtly judicial-centric. Nothing distinguishes the President in his role here in regard to nominating Supreme Court nominees from (1) his role in regard to nominating other judicial nominees and (2) his coordinate role in regard to nominating persons for any and every other office (however humble) within the President’s orbit.

I completely agree.

He continues: 

If the President fails to nominate a person to one of these less prominent offices who would say that the President failed in his constitutional duty? I think few, and perhaps no commentators would make such an argument.

Well, I'll make that argument.  Yes, the President has a duty to nominate, and yes it applies to all offices.  "Shall"  (in this clause, though not in all others) means "must," and of course textually it cannot apply to some offices and not others. (But I think the President has much discretion regarding when to make the nomination).  I don't see why this argument is presumptively untenable.