New in National Review: The President “Shall” Nominate Judges, But Senate Has No Constitutional Obligation To Do Anything

February 15th, 2016

One of the themes that I’ve seen develop is that the Senate has a constitutional obligation to give a President’s nominee and up or down vote. This argument is based on the supposition that Article I imposes some sort of good faith duty on Congress not to block a President’s nominees. This is not an accurate understanding of our separation of powers. I explored this issue in 2014 in an article after Noel Canning, and have updated it in a new article in light of recent events. National Review published my article this morning titled, The Framers Made the Appointment Process Explicitly Political. Here is the introduction.

In October 2013, a reporter asked Justice Antonin Scalia what he thought about the government shutdown. The gregarious justice replied, “I have a deal with the Congress. I leave them alone. They leave me alone.” He was exactly right. The monastic Supreme Court is formally isolated from the political process in all respects, but one — the appointment process. Long before they enter the marble palace, judicial nominees must run a political gauntlet that the Constitution itself has erected. The president has the duty to appoint officials — he “shall nominate . . . judges of the Supreme Court.” But the executive has this power only “by and with the Advice and Consent of the Senate.” Critically, the Senate is under no obligation to give the authority to the president.

This disjunction — the president shall nominate, but the Senate does not have to confirm — activates the very sort of structural bulwarks that the Framers hardwired into the Constitution. The Supreme Court’s unanimous 2014 decision in National Labor Relations Board v. Noel Canning reaffirmed this foundational lesson: When there is inter-branch disagreement that cannot be resolved through the political process, no nominee can be confirmed. Justice Scalia’s prescient concurring opinion in that case reminds us that senatorial refusal to confirm is not an unforeseen flaw but an intentionally designed feature of the Constitution. This is true even where it frustrates the orderly functioning of the federal government.

The Constitution is framed to require the President to take many executive actions, but imposes virtually no legislative duties on the Congress (beyond paying salaries, receiving the state of the union, and a few other items). There is no textual or historical requirement to “consent” to a nominee, and “advice” could be to tell the President to pick someone else. The failure to vote to confirm a nominee is a political problem, not a constitutional problem. And one that must be assessed by the electorate.

This dichotomy — where the president has to act, but the Congress does not — exists throughout the Constitution. The president has a duty to “take care that the laws are faithfully executed.” In contrast, “Congress shall have Power” to make a number of laws, but need not do so. Far more pressing than a vacant seat on the Supreme Court is a Congress that declines to enact the president’s favored laws. As we saw in 2013 when Congress and the president could not reach a compromise over the budget, there was a shutdown of non-essential activities of the federal government. At its core, this was a political problem and not a constitutional problem. Congress has no duty to vote for the president’s preferred budget, no more than Congress needs to confirm a president’s nominees. The shutdown, like a decision to block a judicial nominee, and like all political decisions, will be assessed by the electorate.

Even where the Senate’s refusal to act results in the total shutdown of a key governmental agency–the NLRB–the Senate still has no obligation to act. Recall in that case that Republicans filibustered, blocking a vote altogether on the nominee. Teaching us this lesson is the Court’s unanimous decision in Noel Canning.

All nine justices forcefully rejected the assertion that the Senate has any duty to confirm a nominee, even if the Senate’s refusal inhibits the efficient operation of the government. Justice Scalia cogently made the point in a separate, concurring opinion. Writing with an air of clairvoyance — that we will probably recognize for years to come — he explained that “convenience and efficiency” are not the “primary objectives” of our system of government. Rather, the sort of “Senatorial intransigence” that gave rise to this case “is not a bug” but “a calculated feature of the constitutional framework.” As legal scholar Adam J. White noted in a 2004 article, the Founding-era debates over the confirmation process do “not support an assertion that the constitutional provision for advice and consent contains an implicit obligation to act on the President’s nominations.” The Senate has the constitutional prerogative to vote down a candidate, or to not vote at all.

The other Justices reaffirmed this point.

During oral arguments in Noel Canning, Chief Justice Roberts put it bluntly to Solicitor General Verrilli: “You spoke of the intransigence of the Senate. Well, they have an absolute right not to confirm nominees that the president submits.” The government was asserting, Justice Alito added, that “when the Senate acts, in [the government’s] view, irresponsibly and refuses to confirm nominations, then the president must be able to fill those positions.” Roberts and Alito know a thing or two about intransigence, as then–Senator Obama voted against both of their nominations. But they well understood that if the Senate refuses to confirm a nominee, the Constitution provides no remedy for the president.

This sentiment was not limited to the conservative Justices. Justice Breyer told Verrilli, “I can’t find anything that says the purpose of [the recess-appointments clause] has anything at all to do with political fights between Congress and the president.” Breyer, a long-time counselor to Senator Ted Kennedy, explained that the Senate’s refusal to confirm the president’s nominees was a “political problem, not a constitutional problem.” Justice Kagan added that the NLRB’s going “dark” was directly “a result of congressional refusal.” Kagan, too, felt the brunt force of senatorial refusal. In 1999, President Clinton nominated her to the D.C. Circuit Court of Appeals, but because Senate Republicans scheduled no hearing, her nomination lapsed.

In short, this is a political issue, and not one of constitutional good faith on the part of Congress. They have no such duty, and their failure to act in good faith is to be judged by the voters.

There is an important lesson to learn from Noel Canning. The decision of the Senate to confirm a nominee, or not confirm him at all, is an awesome political power the Framers vested exclusively in the Senate. And with that political power comes political accountability. If the American people disagree with the decision not to exercise this power, they can vote accordingly. But we should not pretend that the Senate has some sort of constitutional duty to confirm a nominee, or even schedule a vote.

Disclosure: As I note in the article, I am supporting Sen. Ted Cruz, but these are views I adopted long ago. Indeed, this piece is copied substantially from a 2014 article I wrote on Noel Canning.