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, Continue reading “Judicial Appointments and Bad Faith” →
Julius Nyang’Oro, the former chairman of the Department of African and Afro-American Studies at the University of North Carolina at Chapel Hill has been charged with a felony count of obtaining property by false pretenses. The charge is exceptionally rare because it involves $12,000 that Nyang’Oro received for a summer course that he taught. While the course originally was meant to have regular classes, Nyang’Oro structured the class as an independent paper course. Notably, the university did not actually lose the $12,000 but recouped it in his final paycheck. Before his resignation in 2012, Nyang’Oro had a roughly $160,000 a year salary.
