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The Senate is Not Constitutionally Obligated to Vote
By Michael Rappaport

In a provocative and interesting post, my colleague Larry Solum argues that the Senate has a duty to advise and consent to presidential nominations of judges, and to do so in a timely manner. Thus, the Senate’s filibuster of the nominations cannot constitutionally postpone a Senate vote indefinitely. While I find Solum’s post to be extremely interesting and original, I must disagree. Certainly as to President Bush’s circuit court nominees, such as Estrada and Brown, the Senate has no legal obligation to take an up or down vote on their nominations.

Solum first argues based on the text and structure of the Constitution, claiming that the President has a duty to nominate judges and therefore the Senate has a corresponding duty to vote on the nominations. His textual argument is that the Constitution says that the President “shall nominate” and therefore obliges him to make nominations. But this argument will not work.

While I have several concerns about this argument, let me just mention the most important. This textual argument seems to suggest that the President must nominate persons to all positions that are open, but historically this has never been the understanding. Presidents have decided not to fill vacant offices for various reasons, including saving money. Certainly, there is no constitutional infirmity with the President choosing to allow offices to remain unfilled.

Solum might reply that it is legal for Congress to make the appointment of an office discretionary (and therefore these historical examples should be analyzed on that basis). But Congress can make the appointment of vacant offices mandatory and the President would therefore have an obligation to fill them.

While I have reservations about the ability of Congress to make the appointment of offices mandatory, lets assume that it has that power. Solum must then argue that Congress has made the appointment of circuit judges mandatory. While I have not checked the statutes recently, I do not remember any language purporting to require that the President fill these judicial offices. Thus, the nominations would appear to be discretionary and therefore both the President and the Senate are not obliged to act.

Solum also makes a structural argument. If the President did not have a duty to make nominations, then he “could dissolve the Supreme Court by refusing to appoint” the Justices. This is a clever example because the Constitution establishes and appears to require the existence of a Supreme Court, but again I do not think it works. It is possible that President Washington might have been constitutionally obligated to nominate justices to the Supreme Court in order to allow the Court to sit, but that hardly suggests that Presidents are required to fill judicial offices generally. Even if there were two vacancies on the Supreme Court, it could continue to operate and therefore it is quite possible that the President would not be required to make a nomination. Certainly, that there are, let us assume, 15 vacancies out of 150 circuit court judges, imposes no obligation on the President or the Senate. The circuit courts can continue to operate with these vacancies and the Constitution does not even require the existence of lower federal courts.

Another argument against Solum’s view is the similarity between a failure to vote on a nomination and a vote that refuses to confirm. Certainly, the Senate has no obligation to confirm nominees, even if that prevents the Supreme Court from having a quorum in order to sit. Yet, the refusal to vote operates in much the same manner: a refusal to vote denies confirmation (until such time as a vote is held and the Senate chooses to confirm). If the Constitution permits the Senate to vote no, it is not at all clear why it does not allow the Senate not to vote.

Solum’s second argument is based on history – in particular, on President Washington’s conception of the Senate as an executive council. (I will discuss this argument only briefly, but I may have a bit more say about it when I get to the office and check my files.) While President’s Washington’s view is plausible, it is certainly not compelled and there are strong arguments against it. First, the Constitution states that each house shall determine the rules of its proceedings and that strongly suggests that the Senate need not allow the President to require that they meet in the White House or that they meet when he says so. Indeed, it is not clear that the Constitution even allows Congress to delegate such power to the President.

Second, President Washington’s view has not been followed, if it ever was, in the last 200 years. It is hard to argue that it ought to be resurrected at this late date. Given Solum’s strong views on judicial precedent, this should be an especially strong argument for him (even though the practices of the Senate are not judicial precedents but legislative ones).

In the end, Solum makes an interesting and impressive case for an obligation of the Senate to vote on judges – a much stronger case than I thought possible. But despite his evident ability as a lawyer, I do not believe that he shows that the Constitution requires the Senate to vote on President Bush’s circuit court nominees.
posted by MichaelTom at 11/14/2003 12:50:00 PM