“Part II: The Appointments Clause Imposes No Duty on the President To Nominate Supreme Court Justices, Other Article III Judges, and/or Executive Branch Officers. The Appointments Clause Imposes No Duty on the Senate To Confirm Candidates.”

It depends on what the meaning of the word shall is, says Seth Barrett Tillman:

Now the people who have opined that President and/or Senate have a constitutional duty (per the Appointments Clause) to nominate a successor to AS are distinguished commentators, whose opinions deserve fair consideration. However, there are people who have taken the opposite position. These include, for example, Professors Lawson and Seidman, Adam J. White, a well-published D.C. practitioner, and Daniel Koffsky, a senior Department of Justice attorney. See, e.g., Gary Lawson & Guy Seidman, Downsizing the Right to Petition, 93 Nw. U. L. Rev. 739, 762 n.123 (1999) (“[T]he Appointments Clause is best read as a grant of power rather than an affirmative duty.”); Adam J. White, Toward the Framers’ Understanding of “Advice and Consent”: A Historical and Textual Inquiry, 29 Harv. J.L. & Pub. Pol’y 103, 147 n.235 (2005) (“[T]he President is under no duty to nominate someone to fill a vacant office—despite the Constitution’s instruction that he ‘shall’ so nominate . . . .”); cf., e.g., Appointment of a Senate-Confirmed Nominee, Op. Off. Legal Counsel 232, 232 (Oct. 12, 1999) (Koffsky, Acting Deputy Asst. Att’y Gen.) (“The Constitution thus calls for three steps before a presidential appointment is complete: first, the President’s submission of a nomination to the Senate; second, the Senate’s advice and consent; third, the President’s appointment of the officer, evidenced by the signing of the commission. All three of these steps are discretionary.”), http://tinyurl.com/gljnnv8. These people are also distinguished commentators, whose opinions deserve fair consideration.
Here we are faced with what are essentially conflicting intuitions in regard to the original public meaning of an 18th century text. Both sides cannot be correct. What to do? We should look for evidence, and fortunately, some good evidence is at hand.

Read the whole thing.

18 thoughts on ““Part II: The Appointments Clause Imposes No Duty on the President To Nominate Supreme Court Justices, Other Article III Judges, and/or Executive Branch Officers. The Appointments Clause Imposes No Duty on the Senate To Confirm Candidates.””

  1. I just posted a link to a story on PJM on this topic.

    Biden and Reid agreed No Senate votes are necessary for “Advice and Consent.”

    Senator Byrd declared:

    There is no stipulation in the Constitution as to how the Senate is to express its advice or give its consent. President Bush incorrectly — incorrectly — maintains that each nominee for a federal judgeship is entitled to an up or down vote. The Constitution does not say that. I say the Constitution itself does not say that each nominee is entitled to an up or down vote. The Constitution doesn’t say that, it doesn’t even say that there has to be a vote with respect to the giving of its consent. The Senate can refuse to confirm a nominee simply by saying nothing and doing nothing.

    Biden is a fool.

    Senator Biden urged “not scheduling confirmation hearings on the nomination” of any Supreme Court justice “until after the political campaign season is over,” has generated a firestorm of recent controversy. Both Senate Majority Leader McConnell and Judiciary Committee Chairman Grassley have cited this “Biden Rule” to justify the Senate’s refusal to consider Garland’s nomination, thus confirming articles by the New York Times (“24 Years Later, Joe Biden’s Words Haunt Democrats”) and USA Today (“Biden’s Court Comments May Haunt Him 2 Decades Later”).

    A talkative fool but there is an old rule, “Let people think you are stupid but don’t open your mouth and prove it.”

  2. I’m reading on my phone. Did I miss the link up there somewhere


    I don’t see how it can be a mandatory requirement that the Senate confirm any appointee. What are the consequences if they don’t? Nothing.

    Not only should they not confirm anyone this year, but they shouldn’t confirm anyone to replace Scalia ever. Reduce the number of justices to eight. More deadlocked ties would hopefully help prevent anymore legislating from the bench or inventing more guaranteed rights out of thin air.

  3. I see this a tempest in a miniature teacup. No one outside of a few law professors cares. Most people are worried sick about terrorism, the economy, and the increasingly bizarre Presidential campaign that seems to be conspiring to give us a choice between a felon and a clown. If that is not enough, try this:

    China Is Making Western Diplomats Very Anxious

    “Tensions between Japan and China have been rising, and Beijing has become more aggressive in the South China Sea. Meanwhile, as China’s economy has slowed, its internal politics have become more authoritarian. Diplomats from several countries are more worried about China’s direction than they have been in decades …

    “Now, something seems to have changed and Beijing isn’t playing by the same playbook. This isn’t just our opinion: it’s quickly becoming the consensus among the people who know China best. If it worries them, then it should worry everyone else too.”

  4. That result does not follow. In the case of a Supreme Court deadlock, the lower court ruling stands. You have several circuit courts of appeal that are far left. Their rulings will stand and may be inconsistent with other’s. One of the major functions of the Supreme Court is to rule on such inconsistencies as well as correct errors in lower court rulings.

    The court at eight will not be long in duration. Several other justices are likely to retire or die shortly. A Supreme Court of seven, six or five within a couple of years is probable given no appointments. This is the issue upon which the control of the senate and presidency could be of huge importance.

    Something to think about if one is primarily using one’s vote as a proxy for one’s middle finger.


  5. I can’t tell whether the Tillman wants to read “shall” as voluntary because distinguished contemporaries of the authors of the constitution thought that that was what “shall” implied in legal writing in the authors’ day, or because the 1803 court decision should be a binding precedent whatever the justification for it.

    The problem with the precedent argument is that the court’s 1803 opinion seems to me to be supported by nothing at all. It cites no evidence for its interpreting “shall” as voluntary on two occasions, but perhaps compulsory on one. It just states it, with an air of “so there!” or “cos we say so!”. Or, as Tillman says, it’s “mere dicta”. What silliness.

  6. I had gone back to New Reform Club to check one his citations, and found that he had briefly summarized his argument in a letter to the Boston Globe, the text of which he had posted, and which I shall quote below:

    Deans Minow and Tacha wrote that “President Obama [has a] clear constitutional duty to nominate a successor” to Scalia. This precise issue was addressed by the Supreme Court in Marbury v. Madison. In 1803, 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. In 1999, the United States Department of Justice’s Office of Legal Counsel issued an opinion stating: “The Constitution thus calls for three steps before a presidential appointment is complete: first, the President’s submission of a nomination to the Senate; second, the Senate’s advice and consent; third, the President’s appointment of the officer, evidenced by the signing of the commission. All three of these steps are discretionary.” See Appointment of a Senate-Confirmed Nominee, Vol. 23 Opinions of the Office of Legal Counsel, page 232 (1999) (Koffsky, Acting Deputy Assistant Attorney General). In short, for over two centuries, the received wisdom—based on the highest legal authorities—has been that the President has no duty to nominate anyone to a vacant office, and the Senate has no duty to consider any of the President’s nominees.

    Why Deans Minow and Tacha would assert otherwise is a mystery.

    The last sentence is, of course, rhetorical.

  7. “for over two centuries, the received wisdom—based on the highest legal authorities …”: yes, but as I said the old boys on the Supreme Court in 1803 seem just to have made the doctrine up out of thin air. Were they, perhaps, parti pris in some political squabble of the time? Did they enjoy inventing stuff for the fun of exercising power? My general impression is that judges quite often decide on the judgement first and then contrive a chain of argument to support it. However, it’s surely good practice to explain that chain of reasoning and evidence rather than just issuing “dicta”.

  8. Dearieme: I take it that you are neither a lawyer, nor a historian.

    First, as to John Marshall, he is revered by Americans of all stripes as the Supreme Court Justice who established the importance and authority of the Supreme Court. He was not merely a contemporary of the Founding Fathers, he was an important member of that generation. From his Wikipedia biography: “In 1788, Marshall was selected as a delegate to the Virginia convention responsible for ratifying or rejecting the United States Constitution, which had been proposed by the Philadelphia Convention a year earlier. Together with James Madison and Edmund Randolph, Marshall led the fight for ratification. He was especially active in defense of Article III, which provides for the Federal judiciary. His most prominent opponent at the ratification convention was Anti-Federalist leader Patrick Henry. Ultimately, the convention approved the Constitution by a vote of 89–79.”

    If you believe that the original public meaning of the Constitution is the light by which it must be interpreted, as did Justice Scalia, as does Professor Tillman, and as do I, then Marshall is one of those who expounded it in that time, and at that place. His expositions, must therefore, be given special attention and authority.

    As to whether “the 1803 court decision should be a binding precedent”, the question is very profound. The opinion in, what you refer to as “the 1803 court decision”, is usually refereed by its style as “Marbury vs. Madison”. It is not merely precedent, it is the absolute bedrock of constitutional jurisprudence as it has evolved over the last 220 years. Everyone acknowledges that it is the precedent for the authority of SCOTUS to interpret the constitution as the supreme law of the land, and for those interpretations to bind the other branches, and lower levels of Government.

    Many learned arguments have been made as to whether Marshall overreached*. But, it lies ill in the mouths of those (mostly liberals and Democrats) who assert the power of SCOTUS to restructure American Society at whim to state that Marbury is anything but binding. If you reject Marbury, the judgments of SCOTUS are binding only on the parties, and no one but Mr. Garlands mother (or his cousin)would care if were on the Supreme Court.

    Should we depreciate Marbury because it is not written in the same elaborate academic style as many modern opinions? I don’t think so. I think it is tightly reasoned. Its style conforms to what we see when we read 18th and early 19th Century opinions. The modern academical style is more soporific, but not more persuasive, than the older style.

    As for the accusation that the opinion in Marbury is mere dicta, I think we can reject that. Dicta is a term of art referring to matter in a judicial opinion that is not necessary for the judgment. I think Marshall outlines his chain of reasoning and follows it closely. I do not think he discuses anything that is not necessary to his judgment. There is no dicta in Marbury.

    *I regard the subsequent history of judicial review as more than a little problematic. I think that SCOTUS has turned Marshall’s assertion of judicial power into a warrant for free ranging social engineering, and has taken the judiciary far beyond its proper bounds. Given the legal culture of 19th Century America, I doubt that it could have evolved in any other way. But, I would probably favor a combination of substantive and procedural changes to the legal system that would deprive the judgements of the Supreme Court of any power over persons other than the actual parties to the judgement, other than the merely persuasive. Among those changes would be ending class actions and declaratory judgments, over-ruling the doctrine of collateral estoppel, and revising rule 11 to allow lawyers to file pleadings regardless of previous judicial pronouncements.

  9. Dearieme: I do not think it would be profitable for me to try to educate you in law or history. You are clearly in over you head, and you need to remember the first law of holes.

  10. I would like to get a word in as to the substance of the issue of the interpretation of Article 2 Section 2. I do not see any way that the power of appointment can be regarded as mandatory, because it is neither limited in time nor in the nature of the appointee.

    Let us say that a judicial vacant occurs because of the death of a justice on the first day of a President’s term of office, which is defined a by Amendment XX as afternoon on January 20. Would the President be in default of his duty to appoint if he were to wait until the inaugural festivities were over? What about the funeral of the deceased office holder? Certainly he must wait on the appointment until the Senate has given him their advice and consent. What if they were out of session? Is there any day on which we can clearly say the president shall have not performed his duty. What if the vacancy occurs on the last day of the President’s term? As you can see the rabbit disappears down the hole and leaves nothing but his smile.

    Similarly, the clause does not leave the President with a limited class of persons to chose from. The constitution specifies no qualifcation for the position of Supreme Court justice. A nominee need not be a citizen, need not be an adult, and need not be compos mentis. Could the President be required to search out the entire world to find a nominee? Even if we eliminate children, aliens, and the custodial, there might be 200,000,000 eligible candidates for appointment. Good Lord, there are a million lawyers in the United States. How is the President to select a nominee in a finite amount of time? and his term is finite.

    Furthermore, even if we take the shall nominate and the shall appoint as mandatory, there is no shall associated with the Senate’s advice and consent. The Senate’s advice could be don’t do it. And their consent could be negative as well. Any idea that the Senate must advise affirmatively, or they must consent positively turns the entire procedure into a meaningless farce.

    Clearly, Article II Section 2, contains no mandatory duty on the part of anyone.

    But, do not worry, because in a mere 302 days, the issue will devolve either on the clown or the felon.

  11. Mr Schwartz, that was lengthy, vacuous and question-dodging. You have cited nothing – no evidence, no reasoning – to justify Marshall’s notion that “shall” should be interpreted in a voluntary sense on two occasions but perhaps in a compulsory sense on one. What was his justification? A lot of bombast about what an important chappie he was is irrelevant; talk of a “bedrock” leaves me singularly unimpressed. What justified what he said? if there was no justification then the members of the court were acting as dictators, exercising arbitrary power. If there was evidence then they were acting as judges. Was there any evidence and reasoning offered to justify their pronouncement?

  12. Dearie: There are couple possible replies to your complaint. Here is the first one. If you don’t like it, and you won’t the other ones will be given separately below.

    The following is from a report of a case that occurred in the reign of King James I (1607, i.e. before the Pilgrims landed at Plymouth Rock and the same year as the founding of the colony in Virgina) while Sir Edward Coke was chief justice of the Court of Common Pleas but was not published until 1656, after Coke died, and Charles I was beheaded.

    Sir Edward Coke, Prohibitions del Roy:

    A controversy of Land between parties was heard by the King, and sentence given, which was repealed, for this, that it did belong to the common Law. Then the King said, that he thought the Law was founded upon reason, and that he and others had reason, as well as the Judges: To which it was answered by me, that true it was, that God had endowed his Majesty with excellent Science and great endowments of nature, but his Majesty was not learned in the Laws of his Realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his Subjects; they are not to be decided by natural reason, but by the artificial reason and judgment of Law, which Law is an art which requires long study and experience, before that a man can attain to the cognizance of it;

    I am sure that you are unhappy with this reply. James was pissed too. Coke says:

    With which the King was greatly offended, and said, that then he should be under the Law, which was Treason to affirm, as he said; To which I said, that Bracton saith, Quod Rex non debet esse sub homine, sed sub Deo & Lege (The King is under no man, but he is under God and the law).


    I am sure that the King left the meeting fuming, but Coke kept his job, and his head, but, prudently, Coke did not publish the report during his lifetime.

  13. Dearie: As I said above, you are, no doubt, unhappy with that answer.

    For the purposes of this answer, I will concede your point. Marshall’s opinion in Marbury is mere ipsi dixit*, and is a naked power grab. After all, Jefferson was unhappy with the opinion, and he was the winner of the case. Further, although I claim neither Jefferson’s learning, nor his wisdom, I thought that the opinion was weak and was a power grab when I first read it in my law school class on Constitutional Law, 43 years ago.

    But, let us follow this through to its logical conclusion. If the Marbury opinion is unfounded, the Supreme Court cannot rely on it to demonstrate that it has the power of “judicial review”. And, if that is true, then the entire edifice of constitutional jurisprudence collapses.

    To me, that would be a good thing. I can assure you that Deans Minow and Tacha would be utterly horrified by that thought. Tillman has, as a result, checkmated them.

    *”Because I say so”. A friend of mine who works at the Department of Justice once told me that a colleague had sent an email around the office saying that the colleague had received an opponent’s brief which said that the judge’s ruling was not only ipsi dixit but was also “el toro poopoo“, and asked if any of the Latin Scholars in the office could translate the phrase for her.

  14. Marshall helped write the constitution. Jefferson didn’t. If Madison’s Federalist Papers can be used to determine what the constitution means without demanding more detailed justification, then certainly Marshall’s ruling should too.

  15. Thank you for your Trade Union view of the law, Mr Schwartz. Clearly you’d prefer that my oversight in not being indoctrinated in these arcane mysteries has denied me any right to ask questions. But like clever little King Jamie, I can see the case for reason being brought to bear.

    You seem merely to be arguing backwards from an outcome you want, whereas I don’t give a hoot about the Marbury decision nor about Deans Minow and Tacha. I don’t care what “shall” meant; I simply want to know how Marshall and his cronies knew what “shall” meant, and how they knew that it had one meaning on two occasions but potentially a different meaning in a third. That’s all. Was it magic? Divine inspiration? Were they the equivalent of the priesthood of a revealed religion? How did they know? What did they say to justify what they claimed to know?

    You still haven’t pointed to anything that justifies Marshall’s view other than a sort of He Was A Great Man expostulation, the sort of argument from authority that’s logically empty. I rather like what little I know of the “originalist” case for Constitutional interpretation, but it’s much weaker than I supposed if it turns on uncritically accepting what may have been mere prejudice or bias a couple of hundred years ago.

    I’m not unhappy with Coke’s answer, by the way, I’m amused by it. It looks to me as if the King, being used to Scots Law which proceeds from principles, or “reason” if you like, was flummoxed by English common law which puts much greater weight on precedent. Very droll. (You did recognise, didn’t you, that that may well have been the subtext to the remarks?)

  16. Dearie: I clearly cannot explain anything to you. You will not accept the authority of two of the greatest jurists who ever lived. I can’t even agree with you without being berated. I am simply glad that I am not married to you.

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