Advice and Consent

I will begin by saying that I am the last one in the world to bemoan Congressional "gridlock".  I have this argument all the time, but I just don't see that we Americans are facing some imminent shortage of laws and so lack of productive lawmaking by Congress doesn't pose any great problem for me.  And gridlock certainly is not an adequate reason for rule by Presidential fiat, as I have seen argued a number of times in the past couple of years.  There is no Constitutional clause allowing Executive action if Congress won't pass the President's preferred legislation.  The narrow party split in Congress is a reflection of a real split in American voters --  gridlock on particular issues in Congress will pass, as it always has, when the electorate coalesces into a majority on the issue.

All that being said, I have always thought that the Senate's advice and consent functions should be exempt from the filibuster.  Presidential appointments need to get an up or down vote in some reasonable amount of time.  It is fine if the Senate wants to say "no" to a particular judge or appointment, but there needs to be a vote.  I say this obviously in the context of the current Supreme Court vacancy.  I am almost certain not to like Obama's appointment, so I say this now before I get tempted to move off my principles here in the exigency of politics.  But not voting on a Supreme Court nominee for a full year is just stupid  (btw Republicans, for all your love of the Constitution, show me anywhere in the document where it says "lame duck" presidents have less power).   If Republicans want to run out the clock by voting down one candidate after another, then they can of course do that, and suffer the political consequences -- positive or negative -- of doing so.  And suffer the future precedent as well (if a one year wait is the precedent now, what about 2, or 4, next time?)   If Republicans wanted to pick Supreme Court nominees in 2016, they should have won the last Presidential election.

Politics is a multi-round game that goes on for decades and centuries.  This is one reason the filibuster still exists.  Both parties have come achingly close to eliminating it when they had slim majorities in the Senate, but both walked away in part because this was a move that worked for one round of the game (whatever vote was at hand) but has downsides in a multi-round game (where one's party will be in the Senate minority again and will want the filibuster back).  It just infuriates me that the current participants in this game seem bent on making decisions that seem indifferent to future rounds of the game.  GWB and Obama have both done this with expansions of executive power - the Left is cheering Obama on to govern by fiat but will they really be happy with these precedents in a, for example, Cruz administration?  Ditto now with the Republicans and trying to run a full year off the clock on a Supreme Court nomination.

Postscript:  By the way, the very fact a Supreme Court nomination is so politically radioactive is a sign of a basic governmental failure in and of itself.  The libertarian argument is that by giving the government so much power to intervene in so many ways that creates winners and losers by legislative diktat, we have raised the stakes of minutes points of law to previously unimaginable levels.  In a world where the government is not empowered to micro-manage our lives, a Supreme Court nomination would be as interesting as naming the postmaster general.


  1. Tom Nally:

    When the Constitution assigns obligations, it occasionally mentions timing, but only in the most general way. Twice, it uses the phrase, "from time to time". (One has to do with the President's report on the State of the Union. The other, I can't recall. ) But in the Appointments Clause, it is absolutely silent on the required time within which to fulfill the obligation.

    A President could use this to his advantage, too. Say that a Supreme Court vacancy arises three months prior to the midterms, and the composition of the Senate is expected to change in a way that's more favorable to the President. He could defer his nomination while he awaits control of the Senate to switch to his party.

  2. ColoComment:

    The four "conservatives" on the Court have from time to time surprised those who thought they understood how the four thought (or should think) on issues. The most egregious recently being CJ Roberts with his Obamacare re-writing.

    OTOH, the four "liberals" on the Court have, so far as I'm aware, NEVER surprised anyone in their decisions, no matter the issue, the law, or the argument.

    There is something rotten at the core when one can predict with near-perfect certainty the conclusions of four justices, based solely on what would be the outcome most highly desired by the left.

    Obviously, we all understand that this is why Justice Scalia's replacement is so important. If there be a guaranteed, no deviation from a politically left-sponsored-result, 5-justice majority that will ALWAYS vote for liberalizing the law of the land, then somewhere around 1/2 of the nation's population will be deprived of "equal justice" under the law, and we will have a tyranny of 5 black robes worse than we've ever experienced before.

  3. Onlooker from Troy:

    Hear, hear. We're on the cusp of the total obliteration of the Constitution with the left being freed to do whatever they want to with the club of the Fed govt in hand.

    It's been bad enough up to now (especially with Roberts going completely off the reservation with the Obamacare ruling), but this would truly be the end of the Republic. I don't have a lot of confidence that this wouldn't result eventually no matter what happens here, but this is surely a place to make a hard principled stand, or else.

  4. kidmugsy:

    Keynes: "If economists could manage to get themselves thought of as humble, competent people on a level with dentists, that would be splendid". Delete economists, insert SCOTUS judges.

  5. Dan Wendlick:

    One of the principles that Scalia himself championed was that the law has a definitive meaning, and if there was a consensus that the meaning needed to change, then the legislative branch should change the text to fit the new consensus. You can in one brief paragraph state that congress shall make no law abridging the right to medically terminate a pregnancy, and that this shall be deemed to be equally binding on the several states, the territories, and other possessions of the United States. Get this passed according to Article V of the Constitution, and 50 years of jurisprudence becomes settled and moot. If you're of a different philosophical bent, write an amendment that strikes the Militia clause of the Second Amendment.
    If there is no political will at the Federal level, then either the former interpretation should stand or pull out the Ninth and Tenth Amendments and leave the decisions to the States. I'm not saying that the court should not be able to correct errors like Dred Scott, but when they overturn a previous precedent they should be able to point at the black letter text of the statue or clause that was interpreted falsely.
    These questions can and should be settled through the political process; they should not be subject to which party was in office when Justices died.

  6. mlhouse:

    IF the Republicans are dumb enough to play by the rules then that will be their mistake. The Democrats run the show with impunity. WHen George W. Bush the Democrats announced, despite the lack of an appointment, that Bush would not have any potential Supreme Court nominations considered. In fact, they refused to confirm two appeals court justices during Bush's last year, waiting out the clock.

    Listen, when the Democrats are in the minority the filibuster is the bedrock of Democracy and the "nuclear" option is the worst idea since Hitler and Osama bin Laden. WHen the Democrats are in the majority, the filibuster is a dirty tool of greed and the nuclear option becomes US Senate rules. THey invented the game of Borking a Supreme Court nomination. Let them eat the spoils of their system.

    If the court was unbalanced and the nomination did not mean much, then maybe I would have a different opinion. Maybe if the Democratic President was a centrist I would have a different opinion. But that isn't the case. The Court can work with 8 justices for the interim. The American People can have their say in November. And then, based on the results, a new justice can be named.

  7. Maximum Liberty:

    The nomination and approval of judges have far-reaching consequences, and are left to a political process. The Constitution doesn't give the President, of either party, the right to have a decision within some time. The Supreme Court can soldier on with fewer than nine Justices for a very long time -- it is just a statute that sets the number. That seems right when we are talking about lifetime appointments.

    The only way I see to permanently break the deadlock around judicial nomination is to change their term of office and set a schedule for appointments, so that less is at stake with each appointment. Here is my preferred version of that:
    1. The Supreme Court will be composed of seven justices, of whom the justice most distantly appointed will be the chief justice.
    2. The president may (with the consent of the Senate) appoint one justice to the supreme court for each four-year term to which the president is elected. If the elected president dies, resigns, or is removed from office, the succeeding president or presidents may make that appointment (with the consent of the Senate), but only if no appointment has been made during that four-year term. No president may appoint a justice to the supreme court without the consent of the senate, even during a recess or adjournment of the Congress.
    3. If the president who appointed the justice was elected to the presidency, the term of office is 28 years from the beginning of that presidential term. If the president who nominated the justice succeeded to a vacant presidency, the 28-year term runs from the beginning of the presidential term of the person who was then most recently elected president.
    4. If the Senate has not voted on a president's nomination of a justice to the supreme court by midnight of the 45th day after the nomination, then no bill passed by the Senate after that time is a law unless the Senate passes that bill again after having voted on the nomination. [Note that this allows resolutions that are not laws, such as declarations of war, and continuing budgetary resolutions. Hey, fewer laws is better!]
    5. A president who is re-elected (or who succeeds to a vacant presidency to which the prior incumbent was re-elected) may nominate nominees to a justice position left vacant at the end of any prior term in which he or she was president (or in which any person was president to whom he or she succeeded after death, resignation, or removal of the president).
    6. If the president nominates at least four nominees to the supreme court during the president's four-year term of office (including, for a president who succeeds to a vacant presidency, all prior nominations during that four-year term) and the position remains vacant at the end of that term of office, then the president is automatically appointed to the vacant position of justice when the president is no longer president. If the president is re-elected to a second four-year term of office, and the president nominates at least four nominees to the supreme court during that second term of office, and the position to be appointed during the second term of office remains vacant at the end of that term of office, then the vice president is automatically appointed to the vacant position. [There are a bunch of detailed problems here. Example 1: the president succeeds to a vacant presidency after two years of the term has passed, so he can be re-elected twice. Example 2: the president is elected, would become justice, gets re-elected, dies in the presidency, his successor gets re-elected, would separately become justice, and also dies in office. But the point here is to give the Congress a reason to accept an appointment. If we end up with a six-person court for some time, that's fine.]
    7. If any justice of the supreme court dies while in office or resigns or is removed from office, the most recently retired justice is automatically appointed to the position if he or she accepts the appointment by so notifying the Senate within 28 days. If the most recently retired justice does not accept the appointment within 28 days, or affirmatively declines the appointment by so notifying the Senate, then the next most recently retired justice may accept or decline the appointment int he same manner, with that process continuing until the vacancy is filled or no other retired justices remain.
    8. If the supreme court has a vacancy not otherwise filled, the president may appoint a replacement with the affirmative vote of two-thirds of the Senate, but the Senate need not consider the president's nomination.

    You would need to do something similar for the courts of appeals and district courts, so that each president gets to appoint some. Maybe at the end of their term on the supreme court or a court of appeals, the retiring justice becomes a district court judge on senior status, so that we maintain the salary protection, so that justices never have a financial incentive for their decisions.

    A key point is you have to put the effectiveness of the constitutional amendment in the distant enough future (e.g., eight years after ratification) that it is clear no one gets a predictable benefit.

  8. J_W_W:

    I'm sorry but the justice Obama nominates will be hell bent on removing our first amendment rights (overturning Citizens United) and erasing the right to bear arms. The left is looking to disarm and silence their enemies (everyone not progressive). I don't give a single shit about following the rules for this nominee. Not when they are sure to have no concerns but empowering government tyrrany.

  9. mesocyclone:

    "btw Republicans, for all your love of the Constitution, show me anywhere in the document where it says "lame duck" presidents have less power"

    Oh, please. Show me anywhere in the document that the Senate has to vote on a nominee any time soon.

    I applaud the Republicans. Obama will never nominate anyone acceptable. By just rejecting them all out of hand, this will let drama to go away. Otherwise we will be hearing Democrats whining on the front page of every newspaper, for the whole darned year.

    Anyone nominated will be an advocate of the "living" Constitution, which is shorthand for "whatever we want it to mean."

  10. Tom Nally:

    If the Republicans defer their consent to a time of their choosing, they ARE playing by the rules. Why? Because the Appointments Clause requires "advice and consent" but is completely silent on the time frame. There is no argument that deferred advice and consent is unconstitutional.

  11. mlhouse:

    No one is arguing about the constitutionality of it. The US Senate can create its own rules. This statement was using the word "rules" more within what is the commonly accepted procedure. A Supreme Court nominee can be confirmed well within the remaining time of the Obama administration.

    I would not move on any Obama Administration nominee for Supreme or Appellate courts.

  12. joe:

    An excellent example is Ginsburg's plurality opinion in the ACA case - 8 pages of reasons the US need health care reform, followed by the legal argument "that since we need health care reform, the ACA is constitutional - ie the government can compel commerce"

    Another example is Stevens dissent in McDonald - Since we prefer gun control, we can interpret "all laws" under the fourteenth amendment to mean that we can pick and chose which amendments under the constitution to incorporate.

    Same with Stevens dissent in Citizens United - We can pick and chose which corporations have free speech rights under 1A based on whether we approve of the content of the speech. (NYT, CBS, etc

  13. ano333:

    His point was that the Republicans' argument that the next President should nominate Scalia's replacement doesn't have any basis in anything at all, least of which the Constitution. The Senate Republicans do not have to vote on anything at all, as you say, but they will have to live with the consequences of that obstructionism, which would potentially include a future scenario where a Republican president will have their own nominations blocked by a Democratic Senate.

  14. ano333:

    "A President could use this to his advantage, too. Say that a Supreme Court vacancy arises three months prior to the midterms, and the composition of the Senate is expected to change in a way that's more favorable to the President. He could defer his nomination while he awaits control of the Senate to switch to his party."

    Would he have to defer? Couldn't he just put forward a nomination and then, if it doesn't go through, re-nominate the same person after the elections?

  15. stan:

    Warren would be more convincing if he mentioned the past history of the Democrats on this.

  16. mesocyclone:

    I would point out that what Republicans are doing now is justified by Obama's own obstructionism when he personally voted to filibuster a Bush nominee, not even in the final year of Bush's presidency. Also, Democrats have been vicious in their obstructionism. The "borking" of distinguished legal scholar Judge Bork was almost 30 years ago, but it was so horrible that "borking" is now word in the political lexicon. The smearing of Justice Thomas was just as vile. Republicans need make no apologies.

  17. Tom Nally:

    I'm sure that he could and, frankly, I didn't even think about that.

  18. brauneyz:

    Very disappointed in Warren here. Always found him to be more of a rational thinker than this tripe suggests.

  19. obloodyhell:

    The main problem is that the Dems stymied court appointments for two YEARS (and more, since they controlled key committees) plus when Bush was in office.

    So, while I agree in **principle**, "turnabout is fair play". Fuck 'em. They'll certainly do it for YEARS if, say, Cruz gets elected and the Dems manage to win a slim majority, and any of the aging Lefty SC judges quit.

    And THAT is true regardless of whether or not the GOP "plays fair" right now.

  20. obloodyhell:

    "Just one"? They stalled on DOZENS of judicial appointments not just when they were in the majority but also stalled using legislative tactics involving committees, which they controlled.

    So, no, as I observe above -- they'll do the exact same thing if they can with a GOP president any time they can for YEARS -- regardless of what the GOP does now. Yeah, they're unprincipled like that.

    Remember the "Nuclear Option"? Which the GOP backed down on back in the 2000s when they were in control?

    I do.

    Politeness didn't stop the !@#$#@#@ dems from using it when they wanted to get things passed. :-/

  21. obloodyhell:

    H/T: Patterico

    Chuck Schumer says no obligation not to "Hold off!"

  22. obloodyhell:

    But wait -- so does Harry Reid!!



    Hoist them on their own petard.

  23. jhp151:

    I would argue it is in the Republican Senate's favor to:
    1 - Push for no nomination in the hopes of getting a more conservative nomination.
    2 - Evaluating the President's eventual nomination against the likelihood of another Democratic President or Senate.