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12/11/2018

Judge Peter Eckerstrom: The Garland Nomination, the Senate’s Duty, and the Surprising Lessons of Constitutional Text
Michael Ramsey

Recently published, in the University of Pennsylvania Journal of Constitutional Law, Judge Peter C. Eckerstrom (Chief Judge, Arizona Court of Appeals): The Garland Nomination, the Senate’s Duty, and the Surprising Lessons of Constitutional Text.  From the introduction: 

Academic recourse to historical practice not only failed to provide discernable constitutional boundaries [of the Senate's advise and consent power] after the death of Justice Scalia, it also jumped the gun. That analysis too quickly assumed that the text of the Constitution provided no useful guidance in evaluating the scope of the Senate’s advice and consent power. This Article revisits that text. It aspires to review comprehensively whether the Appointments Clause, and other pertinent constitutional language, can be harmonized with the Senate’s claim of authority. That review demonstrates that the text of Article II of the Constitution provides a surprising level of guidance in discerning the respective powers of the Senate and the President in the appointment process. It concludes that Article II, Section 2, both understood in whole and in its parts, requires the Senate to consider a President’s nominees. It will posit further that the Constitution’s language implies some modest but important requirements for what Senate consideration must entail.

Specifically, this Article will explain how the 114th Senate’s misreading of its textual authority under the Advice and Consent Clause: (1) compromises the President’s exclusive power to select nominees; (2) contradicts the evident purpose of the Appointments Clause as conveyed by its text (the mandatory and prompt appointment of important governmental functionaries); (3) bypasses the Constitution’s express prescription for how the size of the Court may be altered; (4) overlooks constitutional limitations on the Senate’s rule-making authority; and (5) cripples one of the intended constitutional checks on the Senate’s power over the appointment process.

The analysis will consider other features of the Constitution’s text relating to appointments including the Recess Appointments Clause. It will address the placement of the appointments clauses in Article II and the Constitution’s express endowment of “the executive authority” to the Presidency within that article. These features inform the scope of the Advice and Consent Clause. They demonstrate that the clause cannot be harmonized with the Senate’s claim that the phrase tacitly provides it with such dominant authority over the appointment process.

The textual analysis that follows is consistent with the interpretive framework adopted by the Court in Noel Canning. Although that opinion resolved a set of distinct legal questions, it stands as the Court’s most recent precedent addressing the respective powers of the President and the Senate in the appointment process. Any complete analysis must account for how the Supreme Court might assess the constitutional parameters of a selection process for its own membership.

Importantly, the Court’s reasoning in Noel Canning does not elevate historical practice as the primary arbiter of disputed power. Rather, such history carries “great weight” only when direct constitutional guidance is found neither in the plain language of the Constitution, nor from the purpose conveyed by that language. For this reason, a threshold focus on the semantic meaning of pertinent constitutional text, the central project of this Article, fully conforms to the Court’s most recent approach in evaluating appointment disputes between the branches.

To parallel further the Court’s interpretive framework in Noel Canning, this Article will examine how the Constitution’s original framers, advocates, and opponents understood the distribution of power between the branches set forth in the Appointments Clause. Given the inherent challenges in deriving definitive constitutional meaning from such sources, that record is presented as confirmatory of, rather than necessary to, the textual analysis.

The thrust of this inquiry, however, will confine itself to the semantic meaning, context, and purpose conveyed by the words of the Constitution. To the extent the following textual analysis persuades, the resulting conclusions must carry considerable weight under almost all prevailing interpretive theories. Such theories either (1) posit the construction of text as the only mode of understanding constitutional or statutory law that enforces fidelity to democratic principles; (2) enshrine the text as the best evidence of drafters’ intent; or (3) place the semantic meaning of the text at the apex of a hierarchy of interpretive abstraction. Indeed, the dominant theories of textual and constitutional interpretation diverge only when textual meaning can be reasonably perceived as ambiguous. For this reason, inescapable understandings of text can theoretically support strong claims: even claims of near interpretive unanimity on disputed points of law.

Lastly, the Article will explore some of the implications of its conclusion: that the text of the Constitution requires the Senate to consider the President’s nominees and provide a process for each nominee that could reasonably result in filling the vacancy. And, it will explain why the requirement of Senate consideration matters in practice—even if a controlling Senate faction resolves to ultimately withhold consent from a nominee before any consideration process has occurred.

(Thanks to Seth Barrett Tillman for the pointer).