The Right Coast

March 15, 2005
 
Filibustering Judicial Nominees: One More Time
By Mike Rappaport

Larry Solum has responded to my post, responding to his post, which had responded to my earlier post. The blogosphere certainly reduces transactions costs. While I would normally let the exchange stand, I believe that Larry has misunderstood several of my points.

Larry’s main argument is that the Senate has a constitutional obligation to either consent or reject to the President’s nominees in a timely manner – which he reads to mean during the existing Senate session. To help establish this point, he relies on an argument made by George Washington that the Senate functions, when it advises and consents, as an executive council and therefore “the Senate could be called by the President to give advice and consent on his timetable.” Thus, the President could schedule Senate sessions and presumably forbid filibusters. My response to Larry rejected the Washington view and his main textual argument. Let me discuss these matters in turn.

My previous post argued that Washington’s view, that he could schedule and control the timing of the Senate’s response, was not accepted by the Senate and in any event was not the best reading of the Constitution. Despite Larry’s arguments, I stand by my previous claims. As I stated, the Senate asserted the authority to schedule its own responses to the President’s nominations and therefore rejected the claim that the President could control their proceedings. Larry tries to minimize the effect of this by saying that “although Washington’s specific proposal was not adopted, his understanding of the fundamentally executive nature of the Senate’s role . . . provides an important insight into the meaning” of the Appointments Clause. But this concession gives away the game as to the claim that the President can control the Senate, which is what I suggested in my earlier post.

Moreover, the Senate was correct to insist on its own scheduling, since the Rules of Proceedings Clause specifically allows each house to control its own procedures. While Larry responds that the Rules of Proceedings Clause does not negate the possibility that the Senate has a constitutional obligation to respond in a time manner, that is not relevant to my point, which was arguing against Washington’s view that the President could schedule the Senate. Finally, I should be clear that I am not necessarily arguing against viewing the Senate as performing an executive function. The point is that the Senate, when performing that function, controls its own schedule.

Now consider my response to Larry’s main textual claim. First, I argued that his claim that the Senate must respond to a nomination within the existing session could not be found in the text. And, once again, I stand by my point. The Constitution simply does not impose a time limit. While Larry wants to find an obligation in the Recess Appointments Clause, it merely says that the President can only make recess appointments if the vacancy arises during the recess. This makes it convenient for the Senate to respond by the end of the session, but there is no specific requirement. Indeed, Larry recognizes as much when he says if the vacancy arises late in the session, the Senate does not have to respond by the end of the session.

Second, Larry might also be interpreted as arguing simply that the Senate must respond to a nomination “in a timely manner,” understood as within a reasonable amount of time. But even this claim would be questionable. The language says that the President “shall nominate, and by and with the advice and consent of the Senate, shall appoint” officers. While this language might obligate the Senate to respond, it seems more likely simply to say that an appointment cannot be made without the advice and consent of the Senate. Moreover, even if the Senate does have an obligation to respond, it is not clear that a filibuster is an inadequate response. Under the existing rules, a minority of the Senate made clear in the last Congress that it would not allow a vote for these nominations. The President could then respond, either by continuing his nominee or by nominating someone new who was more to the liking of the entire Senate. Larry’s suggestion that the President is somehow forced to accept a vacancy is mistaken.

Finally, let me end by adding one new point. Larry’s letter focuses on original meaning and textual sources, yet Larry is a strong proponent of the force of precedent and practice. And Larry’s position would appear to be inconsistent with much practice. For example, Larry’s view, that the Senate must respond, would seem to suggest that it is unconstitutional for committees to prevent both executive and judicial nominees from coming to the floor. Yet, this practice has been going on for a long time.

In closing, let me say that, once again, it has been a pleasure to debate an issue with Larry. Even when we disagree, it is both fun and enlightening.

Update:Upon rereading my post, I think that I should have said more about one point. I wrote:

“The language says that the President ‘shall nominate, and by and with the advice and consent of the Senate, shall appoint’ officers. While this language might obligate the Senate to respond, it seems more likely simply to say that an appointment cannot be made without the advice and consent of the Senate.’

In fact, the point is stronger than this. I am no longer at all sure that the language can even bear the interpretation Larry gives to it. First, the language explicitly focuses on the President. It thus has the same structure (although it is worded differently) as the following: A mother tells her child, “Go over to the neighbor’s house, and if he says it is ok, retrieve our ball from his backyard.” Clearly, this imposes an obligation on the child, not on the neighbor. Second, and this is the important point, while Larry wants to read in the word shall to apply to the Senate, that will not work. If the shall applies to the Senate, the phrase no longer makes sense. If the shall applied to the Senate, the language would then say something like the following: “The President shall nominate, the Senate shall advise and consent, and the President shall appoint.” But the Framers would not have written this, because it would require the Senate to consent to the nomination. Instead, the Framers would have wanted to say: “The President shall nominate, and the Senate shall advise and either consent or reject the nominee; if the Senate consents, the President shall appoint the official.” But, of course, the Constitution does not use this language. (Compare, though, the Presentment Clause).

Finally, one might ask why the Framers would not have obliged the Senate to either consent or reject if they obliged the President to nominate and appoint. It is hard to know, but one distinct possibility is that they understood that a failure of the Senate to act functioned like a rejection. So there was no need to require a specific yes or no.