This is a new blog and as such I am exploring the contours of “A Progressives View of Constitutional Matters”. So yesterday I am looking through my e mail and one of the legal news sites to which I subscribe announced the decisions of the members of the Senate Judiciary Committee not to convene to hear any candidate that the President might send to the committee to replace Justice Antonin Scalia on the Supreme Court. I filed that away under the category of obstructionist politics, sent out an e mail to my faculty colleagues titled “It's On!! Republicans on Judiciary Committee vote not to hold hearings on Scalia seat”, and settled in to an afternoon of writing and reading and coming up with blog ideas.
About an hour later, my esteemed colleague and professor of Constitutional Law and all around smart guy, Mike James stormed into the office declaring the unconstitutionality of the move by the Senate Republicans on the committee. I thought that I had dimmed his outrage by noting that its politics, bad politics, but politics and not necessarily unconstitutional, but then he made an interesting point. To what extent can one branch of government “hamstring” another branch to the point of stopping the workings of government? This of course is an interesting question coming at a time when the United States is always under a threat of government shutdowns over budget disputes between the executive and legislative branches. So it seems the idea of inefficient government is built into the system in order to stem the accumulation of power that might otherwise occur to one branch or another, something that the framers, we are told, were deathly afraid of. And that is that.
But Michael’s point got me thinking about both sides of an issue that is too often brushed off as just bad but perfectly constitutional politics. The Republican majority on the Judiciary Committee sees a political pitfall during an election year of rejecting a reasonable moderate candidate (which is the only kind of candidate that a president of one party could possibly hope to get through a Senate of another party), and does not want to give the President the opportunity to put the Senate to the test. If we assume that not convening the Senate Judiciary Committee to hear any nominee from President Obama is unconstitutional, how would that argument be made? Well, first, let’s consider the structure of the Constitution.
Built into the Constitution are structural principles that support the notion that inefficient government was part of the constitutional design. Checks and Balances and Separation of Powers are the catchwords that we as Constitutional Law professors throw out to demonstrate the almost unearthly wisdom of the framers of the Constitution. In their wisdom, just freed from the throes of the tyranny of King George for which much blood was spilled (spilt?), something was needed in the second constitutional project (the first, the Articles of Confederation having failed miserably) to prevent new King Georges from occupying the Presidency, but at the same time there was the need to stem the power of Congress, lest the legislature undermine the idea of a head of state and the benefits flowing from the ability to speak with a single voice for the nation. Checks and Balances and Separation of Powers, examples of which are dispersed through the first three sections of the Constitution, would serve both purposes, even if the result was to slow down government to avoid accumulation of power.
But was the inevitable result of slowed down government, gridlock and stall, also within the contemplation of the framers. One consideration is to look at the political crowd that the framers had to work with, many of whom took part in the drafting of the Constitution. The politics of early America were certainly far more fractious than what we bemoan today. The union nearly fell apart on several occasions generations before the Civil War and the incivility among the political hierarchy reached its zenith with the murder of a former Secretary of the Treasury by a former Vice President of the United States. Under these circumstances could the glaring specter of ineffective government have been part of this constitutional design?
The political elite started tweaking the design almost from the beginning. The war power, like other aspects of government, became the subject of tweaking early on. Presidents since Jefferson (who sent the Marines to quell the pirates on the Barbary Coast without a declaration of war or some lesser quasi constitutional permission) have sent people into hostilities without formal declarations of war through a myriad of devices of questionable “strict” constitutionality. Is this evidence of a new constitutional standard or simply a flawed design?
Then there is the judicial review, a process of judicial nullification of action of the political branches by the unelected federal judiciary. In a scenario eerily similar to the present circumstances, Federalist Party President John Adams and the Federalist Congress tried to appoint as many members of the judiciary as they could before the inauguration of Democratic-Republican Party President-Elect Thomas Jefferson, but came up short. Jefferson declined to seat the remaining appointments approved by the previous Congress. A suit by one of the snubbed would be judges was filed in the Supreme Court as a matter of original jurisdiction, the authority to be the first court to hear the matter which was authorized by the judicial legislation in effect then. Yet the Supreme Court declined to rule on the matter because the legislation granting the authority to the Court was inconsistent with the Constitution—unconstitutional. But at no point in the Constitution is the Court given the authority to nullify a Congressional law. Acts of the British Parliament could not be nullified, and still cannot be today by the judiciary of that nation. So nothing in the legal culture of the new country supported such a power at the national level. Yet the Supreme Court did so anyway to “check” the power of Congress to act outside of the Constitution.
Both of these “tinkerings” occurred within the first fifteen years of the ratification of the Constitution.
So, is an advice and consent feature that does not mandate at least consideration by the Senate of the Supreme Court nominating a deliberate feature, a flaw, and/or something needing “tinkering”? Was it expected to work by the framers, or did they understand that it might not work so well at times?
Under Article II Section 2 the President: “shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court.” This language carries with it the assumption that the President may not receive approval of his choices for the Court, and indeed that could mean that the Court would be shorthanded for a while until the Senate settled on a presidential nomination that it could consent to. Fair enough. But the language, in my view, does not contemplate idle action. The President must make a nomination under this provision despite the entreaties by some politicians that he not do so within hours of Justice Scalia’s death. What the Senate Republicans are saying is that they will not consider any nominee, sight unseen, that this President presents to the Committee. This would turn the President’s mandatory act of making a nomination into an idle act since there will be no hearings on anyone submitted to the Judiciary Committee where the Republicans hold a majority. Canons of interpretation notwithstanding, this would not make much sense as just another part of the system of checks and balances a concept which contemplates a competition of power between the branches. Rejecting a president’s choice would check presidential power. Declining to allow hearings of a Presidential nomination to the Supreme Court justice is to cast the mandatory nomination as an idle act. It should be noted that within the legislative branch, one house of Congress could decline to consider proposed legislation of the other branch, yet that feature is, first of all, intra-branch and, second, would render the entire branch inert unless some level of negotiation is initiated and accepted by the two houses. Checks and balances contemplates that one branch will either accept or reject an action, particularly a mandatory action, by another branch. It does not contemplate rendering mandatory acts of one branch meaningless, particularly for political reasons.
The point of this is that the system of checks and balance is part of the constitutional design, but the tact taken by the Senate Republicans on the Judiciary Committee is not part of that system and hence not contemplated as part of the constitutional design. The reasoning behind Jefferson’s unilateral foray into Libya in hot pursuit of the Barbary Pirates (which Congress later approved) as well as subsequent hegemonic acts by later presidents (each of which could have been ended by Congress by cutting off funds) and the Supreme Court’s assertion of the power of judicial review was that they were needed interpretations of the Constitution to address challenges to governance without which governmental structure would fail, certainly not part of the framers’ “original intent”. Judicial review has been accepted as a feature of the nation’s constitutional structure. The contours of the war power remain a subject of debate to this day. Yet both devices became a part of our national governing as a matter of necessity.
Unlike these examples, there is nothing the President can do to make the Judiciary Committee convene on the same order as commanding troops without a declaration of war, or simply rendering a Congressional law unconstitutional. He could take Congress to court, but this is unlikely and ill advised. However, the Constitution’s phrasing of advice and consent as a condition to appointment, and not as a clearly described mandatory action of actually granting or denying consent (as opposed to inaction) would appear to be a flaw in the drafting creating a constitutional gap. As such, like the absence of judicial review and a clear description of the war power, this “gap” should be filled by an understanding that the Senate cannot simply decline to act, for political reasons, on a president’s nominee.
Up or down on consent, the Senate must convene a process. It’s a constitutional obligation.
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