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.