Martha Minow and Deanell Tacha, the deans of Harvard Law School and Pepperdine School of Law, respectively, are frustrated at the Senate’s refusal to consider Merrick Garland, President Obama’s nominee to the Supreme Court. They claim that “two-thirds of Americans want the senators to do their job,” and the constitution is clear about what that job is, for “Article II of the Constitution is not ambiguous. It directs that the president ‘shall nominate, and by and with the advice and Consent of the Senate, shall appoint . . . judges of the Supreme Court.'”
This argument from authority is hardly convincing. As Seth Tillman notes This precise issue was addressed by the Supreme Court in Marbury v. Madison. “Chief Justice Marshall wrote that the President’s nominating a person to an office is ‘completely voluntary,’ not a duty, much less a constitutional duty.”
The case of Marbury v Madison is relevant in another respect. The case involved the appointment of William Marbury to be a Justice of the Peace in the District of Columbia. President Adams nominated Marbury for the position; the Senate confirmed him, and the Secretary of State (who had the duty back then of processing such commissions) signed and sealed, but did not find time to deliver the commission before leaving office. When he became president, Thomas Jefferson instructed Secretary of State James Madison to refuse to deliver Marbury’s commission. In other words both Thomas Jefferson and James Madison held that the President has no legal obligation to deliver a commission that has already been approved, signed, and sealed. If Madison, the “Father of the Constitution,” believed that the Constitution allowed that, then surely he would not have believed that the President has any positive duty to appoint someone on any predetermined schedule, or that the Senate is not allowed to take its own time, and is perfectly free to sit on its hands until a new President takes office.
Chief Justice Marshall, as Tillman notes, would have agreed with Madison that the President may choose to leave a seat on the Court vacant. That said, Marshall disagreed with Madison about when a commission was legal. Marbury v Madison revolved around the question of when an appointment is legally made—is it made when the nomination is confirmed, when the commission is signed and sealed, or when it is actually delivered. The case went directly to the Supreme Court, under a provision of the Judiciary Act of 1789, rather than to a lower court first. Chief Justice Marshall was politically shrewd, he dodged the issue on a technicality. He held that the Court did not have original jurisdiction, and that that provision of the Judiciary Act of 1789 giving it to the Court was unconstitutional, and was, therefore, void. He added, however, that Madison, had no legal right to refuse to deliver a commission that had been signed and sealed. (It is interesting that the secretary of state who had not delivered the commission was none other than John Marshall. Under today’s standards, he would have had to recuse himself from the case, and there would probably have been no celebrated case of Marbury v Madison.)
Returning to Article II, If we read the text strictly, nominating judges “by and with the advice and consent of the Senate” would imply that the President consults with the Senate, rather than merely nominates, otherwise the term “advice” would be essentially a nullity. The comma before “by and with the advice and consent of the Senate” does not mean that he nominates first and then merely asks the Senate for an up or down vote, or the “advice” role would be reduced to mere consent. When President Washington had to negotiate a treaty with the Creek Indians, he went to the Senate to discuss the proposed negotiation, before sending anyone to negotiate. The Constitution says that “He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties.” Washington read that to mean that he should get advice from the Senate at the start of the negotiation, rather than merely submitting a fully realized treaty to the Senate for an up and down vote. That process did not work out, and it became practice for the President not to ask for advice, at least not on the floor of the Senate. Instead, presidents usually have informal discussions about treaty negotiations, and about who to nominate for many positions, as the process is moving along. In other words, anyone who declares that the Senate has no right to decide that it may leave a seat on the Court open is playing politics with the constitution. The Constitution clearly gives each House the right to make its own rule, “Each House may determine the Rules of its Proceedings.” The deans would have us return to the world of George III, or perhaps even that of his Stuart predecessors, in which the King had the right to tell the Commons how they should go about their business.
Perhaps I am mistaken, but I would be surprised if Dean Minow, the Dean of Harvard Law School, does not believe in a “living constitution,” or, at least, a “living originalism.” As such, any argument from precedent, however recent or longstanding, is per se questionable. Clearly, the Senate’s practice regarding appointments had evolved over time, and the process has, in fact, grown increasingly political of late. That does not mean, of course, that the Constitution, rightly understood, does not give them such room for maneuver. That’s what giving the Senate the right to determine its own rules means. They are free to create a rule, formal or informal, that they shall not consider a nominee to the Supreme Court in a presidential election year. There are many things that the Constitution does not decide. In short, neither an originalist nor a devotee of the living constitution school can say that the Senate certainly has no right to decide to wait until after an election to consider a nominee to the Court.
That said, the deans do raise an important concern, but they mistake its source:
The belief that judges follow the law, and do not reinterpret it to substitute their prejudices is fundamental, as is the right, even the duty of the people to pass amendments to change the Constitution if they thing something needs change. If the people lose faith in the system, if they begin to think it is rigged, that will undermine the rule of law that is essential to our republican government. That deans of two major law schools go to such lengths to assert their authority shows the depth of their concern, but it also is, I submit, a demonstration of the problem rather than the solution. Given the nature of our divisions, and given that they are claiming much more than the Constitution, in fact, warrants, they are only pouring gasoline on the fire. They are being deeply political, even as they deny they are being so. They myth of non-political expertise is so powerful in today’s academy that perhaps they lack the self-consciousness to realize how political that very idea is. And that is precisely why the judicial selection process has become so thoroughly politicized.
Richard Samuelson is Associate Professor of History at California State University, San Bernardino.
