Could Senator Sessions Vote for His Own Confirmation?

December 9th, 2016

As a general matter, when a President nominates a current Senator for a position, as a matter of courtesy, colleagues on both sides of the aisle will vote for one of their own. The votes are usually lopsided. For example, Senator Ken Salazar was confirmed by a voice vote, Senator Hillary Clinton was confirmed 94-2,  and Senator John Kerry was confirmed 94-3. Chuck Hagel was confirmed 58-41 in 2013, but he was a former Senator at that point. (Senator Judd Gregg (R-NH) withdrew his nomination, as did former Senator Tom Daschle (D-SD)). Likewise, Senators appointed to the Court also receive lopsided votes. President Truman’s nominee Senator Burton of Ohio was confirmed by a voice vote and (former) Senator Sherman Minton was confirmed 48-16. President Roosevelt’s nominee James Byrnes of South Carolina was confirmed by a voice vote, and Hugo Black was confirmed 63-16. (Black’s hearing was held in private, in a failed attempt to keep quiet his Klan affiliation). For this reason, I’ve suggested that the easiest Justice to confirm would be Ted Cruz–his colleagues on the other side of the aisle would be all too happy to get rid of the 45-year old, who would likely serve another four decades.

As a result of these lopsided votes, as far as I can tell, it has never been necessary for a Senator to cast a vote for himself or herself. But what if the vote was 49 for and 50 against. If the Senator cast the 50th vote, allowing the Vice President (almost always of the same party as the nominee) to break the tie. I doubt it will come to it, but what happens if the Senate’s votes were different, and the vote for Senator Sessions was 49 for and 50 against? Could Sessions vote for himself? Senator Blumenthal of Connecticut has asked Sessions to abstain voting on his own confirmation.

My first thought was whether there is some sort of constitutional norm. Akhil Reed Amar’s thought-provoking book, “America’s Unwritten Constitution,” begins with the impeachment trial of President Johnson in March 1868. Senator Benjamin Franklin Wade of Ohio is the president pro tem of the Senate. If Wade voted to remove Johnson, he would be next in line to succeed the President. (There was no Vice President at the time). Amar writes of the “intolerable conflict of interest” if Wade was permitted to vote, as his vote would directly benefit his own power. Ultimately, recognizing that the text of the Constitution was silent, and there was no precedent to the contrary, Wade was allowed to vote. Some argued that depriving Wade of a vote would in fact deprive the state of Ohio its suffrage in the Senate. Wade voted “guilty.” As history will recall, Johnson’s removal fell short by a single vote–35 to 19. Wade’s vote nearly was decisive, and could have elevated himself to the White House. The fate of our Republic would have been quite different.

I asked Amar if there was any problem, then, with Sessions voting for his own confirmation. Amar replied that since the commission happens after the confirmation, it would not be problematic. In other words, even after the Senate votes on the confirmation, the President must still complete the final act of commissioning the officer. As you’ll recall from Marbury v. Madison, the “final act,” in that case placing the seal on the commission, was what made the appointment complete–not delivery. (In April 2015, I authored an amicus brief in support of a cert petition concerning a thorny issue of what happens when the President rescinds an appointment after the Senate has already voted).

I also asked Josh Chafetz. His tentative response was that nothing in the Senate Manuel or Riddick’s Senate Procedure prohibits such a vote. He suggested that “nearly all nominees have simply had the good grace to refrain from voting, but I can’t swear that there isn’t a precedent.”

Brian Kalt added that Rule XII provides that “A Member, notwithstanding any other provisions of this rule, may decline to vote, in committee or on the floor, on any matter when he believes that his voting on such a matter would be a conflict of interest.” In other words, it is within the discretion of the Senator to decide for himself or herself.

Based on my august panel of experts, my tentative conclusion is that a Senator can vote for his own confirmation.