Judicial Appointments and Bad Faith

 By Mike Appleton, Guest Blogger

“Despite suggestions by the President, various Senators, and numerous commentators that the Senate has a constitutional obligation to act on judicial nominations, the text of the Constitution contains no such obligation.

-Adam J. White, “Toward The Framers’ Understanding of ‘Advice and Consent’: A Historical And Textual Inquiry,” 29 Harvard J. Law & Pub. Pol. 103, 147 (2005)

“… [T]he constitutional obligation to provide advice and consent in the judicial appointment process should be seen as a nondiscretionary duty constitutionally imposed upon the Senate and enforceable by the judiciary.” 

Lee Renzin, “Advice, Consent, and Senate Inaction-Is Judicial Resolution Possible?”, 73 N.Y.U. L. Rev. 1739, 1751 (1998) 

The Constitution requires no more than a bare majority of the Senate to approve a judicial nominee.  How do we know this?  First, there are only five situations in which the Constitution mandates super-majority approval: conviction of an impeachable offense (Article I, Section 3); expulsion of a member of Congress (Article I, Section 5); overriding a presidential veto (Article I, Section 7); approval of a treaty (Article II, Section 2); and the convening of a constitutional convention (Article V).  Second, under a familiar rule of statutory construction known as “expressio unius est exclusio alterius,” the failure to include a super-majority vote requirement in the Appointments Clause means that no such requirement exists.

Nevertheless, the Senate has been able to transform its “advice and consent” function under the Appointments Clause into a sixth super-majority approval standard through its power under Article I, Section 5 to establish “the Rules of its Proceedings.”  And the consequences have been more strongly felt during the current administration than at any other time in our history,

Since 1949 there have been a total of 168 filibusters of presidential nominees (incuding non-judicial nominees), and 82 of those have occurred under President Obama.  Through the first five years of his administration, the second President Bush had secured confirmation of 91% of his judicial nominees; for President Obama during the same time frame, only 76% were confirmed  The average wait for a confirmation vote has increased from 43 days to 107 days since President Obama took office.  During the current year alone, federal judicial vacancies have increased from 90 to 110 and declared judicial emergencies from 27 to 38.  Of 179 circuit judgeships, 17 are vacant.  Clearly something is wrong.

Part of the difficulty is that the Constitution does not prescribe a method by which the Senate is to exercise its role in the appointment of judges.  In Federalist Number LXVI, Alexander Hamilton notes that the Senate’s advice and consent function is limited to the ability to “ratify or reject” a nominee.  In Number LXVII, he observes that the appointment process “is confided to the president and senate jointly,” suggesting that the effort is intended to be collaborative and cooperative.  And in Number LXXVI, Hamilton emphasizes that the selection of a nominee is for the President alone, with the Senate’s veto power serving to discourage favoritism, cronyism or other improper motives, but likely to be employed only sparingly because the rejection of a judicial candidate does not guarantee a more acceptable successor nominee.

Given this historical background, it is not surprising that academic treatment of the Senate’s role in judicial appointments is as disparate as the quotes at the beginning of this comment indicate, ranging from the opinion that the Appointments Clause does not compel any action by the Senate to the equally strong opinion that an evaluation of and a vote for or against a judicial nominee is a constitutional mandate enforceable by the courts through a declaratory decree, or perhaps even issuance of a writ of mandamus.

The propriety of the filibuster in the appointment process elicits similarly distinct reactions.  Scholars have argued on the one hand that it is a completely legitimate exercise of the Senate’s constitutional authority to make its own rules and helps to insure the nomination of moderate candidates.  Opponents urge that the judicial filibuster is unconstitutional because it violates the separation of powers principle and the bicameralism and presentment requirements under the Constitution.

My own view is that much of the debate has been myopic and purely partisan.    Indeed, many of the arguments advanced by Democrats against Republican filibusters of judicial nominees are identical to those made by Republicans complaining of Democratic obstructionism during the last administration.  Yet, there is no doubt that, at least statistically speaking, judicial filibusters have grown to alarming levels, making Sen. Reid’s recent decision to amend the Senate cloture rules understandable and defensible.

If we are to restore the appointment process to some semblance of rationality, it is essential that the parties adopt certain operating principles based upon reason and experience.  First, we must agree that neither the Constitution nor common sense place restrictions on appropriate subjects of inquiry when evaluating a potential judge.  Knowledge of the law, judicial temperament and integrity are all critical, of course, but that is not the end of the matter.  In an article written over forty years ago, Charles L. Black, Jr. reminded us that a judge is “influenced and formed by his whole lifeview, by his economic and political comprehension, and by his sense, sharp or vague, of where justice lies in respect of the great questions of his time.” When the President appoints a judge, he or she is appointing a complete human being, and the Senate may, and should be expected to, consider that complete human being.

Second, we must acknowledge that the phrase “advice and consent” contemplates the taking of some action by the Senate.  A contrary argument requires that we ignore the history and purpose of the Appointments Clause and treat the language as superfluous.  Inaction on a nominee, even if constitutionally permitted, is an abdication of responsibility and renders meaningless the notion of public accountability contemplated by the appointment process.  “By requiring the joint participation of the President and the Senate, the Appointments Clause was designed to ensure public accountability for both the making of a bad appointment and the rejection of a good one.”  Edmond v. United States, 520 U.S. 651 (1997).

Third, the Senate’s constitutional power to make its own rules must be understood within the context of the entire Constitution. The lawfulness of a filibuster cannot be determined solely by reference to congressional rule-making authority.  This can be easily understood when one examines the actions of the Senate on the President’s nominations to the D.C. Circuit.  The nominees for the three vacancies have not been considered on their merits and no votes have been taken.  Instead, Republican leaders in the Senate have declared that the D.C. Circuit has a “light caseload” and that they perceive no need to fill the existing vacancies.  However, in accordance with its authority under Article I, Section 8 of the Constitution, Congress has prescribed 11 judges for that circuit.  28 U.S.C. Section 44.  That statute, as well as Article II, Section 2 of the Constitution, provides that the President “shall” nominate and appoint judges to fill any vacancies.  The use of the word “shall” in a statute has historically been understood as a mandatory directive.  Congressional rule-making authority relates solely to the procedures pursuant to which it conducts its business.  A filibuster cannot be constitutionally employed to accomplish a de facto amendment to a statutory enactment by a single branch of the legislature.

Finally, the Constitution is a law, but it is also a contract between the states and the federal government.  All executive, legislative and judicial officers are required by Article VI to “be bound by Oath or Affirmation, to support this Constitution.”  Implied within all contractual undertakings is the duty of good faith, which means, at a minimum, that the parties approach their responsibilities with the positive intention of fulfilling the purposes for which they have bound themselves.  This duty is no less important by it’s being unspoken, and it is the duty most frequently violated in the now ceaseless battles over judicial appointments.

Sources: The Federalist (Legal Classics Library, 1983); The Anti-Federalist Papers (Signet 2003); Forrest McDonald, Novus Ordo Seclorum (Univ. Press of Kansas, 1985); Catherine Fisk and Erwin Chemerinsky, “In Defense of Filibustering Judicial Nominations,” 26 Cardozo L. Rev. 331 (2005); Charles L. Black, Jr., “A Note on Senatorial Consideration of Supreme Court Nominees,” 79 Yale L. J. 657 (1970); Christopher Wolfe, “The Senate’s Power To Give ‘Advice And Consent’ In Judicial Nominations,” 82 Marquette L. Rev. 355 (1999); Michael J. Gerhardt, “The Constitutionality of the Filibuster,” 21 Constitutional Commentary 445 (2004); Arthur J. Rizer, III, “The Filibuster of Judicial Nominations: Constitutional Crisis or Politics as Usual?”, 32 Pepperdine L. Rev. 4 (2005); Carl Tobias, “Senate Gridlock and Federal Judicial Selection,” 88 Notre Dame L. Rev. 2233 (2013); Politifact.com, Nov. 22, 2013; Brennan Center for Justice, “Updated Federal Trial Vacancy Figures,” November 21, 2013.

19 thoughts on “Judicial Appointments and Bad Faith”

  1. This is a good summary of the issues involved. I do disagree with one point of the final paragraph. The Constitution was explicitly submitted to special Ratifying Conventions so that it in fact would be ratified by “the people” rather than the states.State legislatures did not ratify the Constitution. To that end, the Constitution is not a contract between the federal government and the states, but rather the federal government is the agent of the people. The contractual analogy of “good faith and fair dealing” is misplaced. The individual Senator has an obligation to his constituency and to make an independent judgement on his “consent” to a presidential appointment. There may be some political wisdom in timely consideration of a political appointment, but the “duty” as outlined in the last paragraph does not run to the president. The decision is political and not contractual.

  2. Obama, Reid, and the New York Times are all praising the removal of the filibuster rule.

    Of course when the democrats were in the minority those same people felt that the filibuster option was a sacred and absolutely vital tool. Its lost would result in the destruction of congress.

    Now that they are the majority their view of the filibuster like so many other items have changed. Now they vilify the filibuster.

    No doubt when they are in the minority they and other supporters of the limited loss of the filibuster will protest when some other party has a majority.

    I would argue against the idea that Obama’s appointments are blocked simply because they came from Obama. However answer me this…

    What is worse, blocking a nomination simply because Obama made it or approving a nomination simply because Obama made it?

  3. Is there any merit to the Republican’s claim that the DC Circuit case load is insufficient to warrant 11 judges ?

  4. david,
    the power structure of the Republican Party made that decision, so yes, the Republican Party has made it their only goal to block anything President Obama has presented.
    The Senate changing its rules legally is not akin to Obama making recess appointments. Just the opposite. The rule change was necessary because the Republicans have filibustered over 400 times in Obama’s tenure.

    1. rafflaw wrote: “the power structure of the Republican Party made that decision, so yes, the Republican Party has made it their only goal to block anything President Obama has presented.”

      Who are you talking about? Who in the power structure of the Republican Party has desired a failed Presidency?

      I read an article saying that Rush Limbaugh had said that he would be honored if the drive-by media headlined him saying, “I hope Obama fails.” Problem is, Rush Limbaugh is not part of the GOP power structure. He is a radio talk show host with no affiliation to the GOP leadership. I read that George Will said something similar, but he is a journalist, not a leader in the Republican Party.

      Now arguing that the Republican Party hopes the President fails to put bad policies into place is certainly their agenda, and showing them making efforts to block such bad policies is entirely proper. But claiming that the Republican Party’s agenda is to see that the Obama administration to goes down in history as a failed Presidency is slanderous. It suggests that Republicans are fighting to destroy Obama rather than fighting for sound economic and social policies. We are fighting for these very things because they are what is best for the country. The Democrats are destroying a great nation with all their greed for money, universal free health care, free retirement and other entitlements.

      Who in the power structure of the Republican Party made it the goal of the Republican Party that the Obama administration would go down in history as a failed Presidency?

  5. OS wrote: “…the modern Republican party, whose announced goal early on was to make sure the Obama administration would go down in the history books as a failed Presidency.”

    Correction. The Republican Party never made any announcement like this. You are referring to the words of a handful of party members, not to the platform or policy statement of the Republican Party.

  6. I read two articles that have interesting bearing on this topic.

    One is that all the ugly partisanship started with Robert Bork’s nomination:

    The second article is a recent interview with Bork that indicates he favors a Constitutional Amendment to allow Congress to override a bad Supreme Court decision by super-majority.

  7. Bad faith comes into the equation when the Pope chimes in on the qualifications of a judicial candidate.

  8. So Mike A., now that Obama is making recess appointments while the Senate is in session this is lawful and O.K. with you? If it were Bush doing that, would you be O.K. with it? If not, why not.

    I agree this is politics at work. As Democrats allow the president to do one unlawful thing after another, apparently it does not occur to Democrats that a Republican might do this in the future.

    Republicans believed this in the past. Now they have Obama doing illegal actions on steroids. I think this strategy of jettison the rule of law while your guy is in power is a non-starter. First of all, and most importantly, there is no reason to jettison the rule of law. It tears down your society and harms everyone.

    So, I hope that Democrats stop supporting torture, illegal drone strikes which kill babies, women, children and men, illegal mass surveillance and all the other unlawful things which harm others. Right now, you guys are statistically the most likely to support all of these, including wars of empire, evidently because your guy is in power. That’s not ethical and it’s really, really wrong for our society and our system of government.

  9. The word filibuster was an evolution. A Senator from Philadelphia took the floor and spoke for days, His name was Buster Cherry. They referred to the rant as a PhilaBuster. Later the name morphed into filibuster. I thought that inquiring minds would want to know.

  10. “Each House [of the Congress] may determine
    the Rules of its Proceedings.”‘ — Article I, section 5

    They have already made the rule allowing unlimited (except by a supermajority) debate obsolete. We never get to the debate any more.

    A rule change requires a majority. It must be debated, though, right? Why doesn’t that mean rule changes may be blocked by filibuster?

  11. Excellent Mike…. I agree totally…. It’s a simple advice and consent…. And that’s it…. Too much politics in politics….

  12. The filibuster is gone as it applies to judicial nominees, except for Supremes.

    Wow, a simple majority vote is all it took to bring back the simple majority vote.

  13. Timely article, Mike. I doubt any of the founding fathers could envision the likes of the modern Republican party, whose announced goal early on was to make sure the Obama administration would go down in the history books as a failed Presidency.

    I have to wonder if some of the things the progressives and liberals who comment on this blog have criticized President Obama for may be due to the fact that the radical Republicans of this century are looking for any misstep on his part as an excuse to begin impeachment proceedings.

    Obama is having to be careful where he steps, and following the advice of Sun Tzu, is picking only the battles he knows he can win. Which of course, narrows his options to be proactive dramatically. He could come out in favor of apple pie, and within minutes Box Turtle McConnell and John of Orange would be in front of microphones bleating that he is encouraging Americans to eat an unhealthy diet. That is not leadership but radicalized obstructionism.

    It is about time the filibuster be returned to what it was originally: standing on the floor and talking, not a memo threatening to do so. Same for secret holds, and the requirement for both senators from a state to endorse a nominee. If the rules of the Senate can be changed so they inadvertently encouraged obstructionism, they sure as hell can be changed back to what they were only a few decades ago.

  14. Good faith may be an abstract term but a sincere belief or motive without any malice on the part of the Republicans over these last few years has not been present in the context of judicial appointments.

    (I’m going to ask this next question in a slightly different way than you framed an answer in the paragraph beginning “The propriety of the filibuster …”)

    Are filibusters constitutional in that they are not expressly barred by the Constitution, which delegates authority to the Senate to establish its own rules, or unconstitutional as a thing unknown and probably not contemplated by the framers?

    And ….

    Does the Constitution suppose that senators are free to vote against competent nominees for exclusively political reasons?

  15. Clearly something is wrong, Mike, and an excellent job you’ve done spelling it out and presenting the numbers. Well played.

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