Fidelity to the US Constitution, as originally written and as originally understood, is in politics like the virtue of chastity in a bawdy house: more honored in the breach than in the observance. In pragmatic fact, and as a matter of lived experience, one of the requisite skills for being a successful politician, at least at the Federal level, is the ability to speak at a rarefied degree of abstraction and in tones worthy of Cicero, Daniel Webster, Stephen Douglas, and Abraham Lincoln about loyalty to the Constitution … and then, in the next breath, advocate actions and policies indicative of a degree of esteem for the Document only a couple of steps above discount-store toilet paper. There is even a technical term for this cognitive dissonance. It is called “politics”. In the ongoing controversy over the nomination of someone to replace the late Associate Justice Antonin Scalia, we have a sterling, indeed classical, example of this split-brain phenomenon in action. Nor is this tendency confined to one Party or the other. It is an equal-opportunity employer. The salient question is:
Question 2 of 2: Is a sitting President always obligated to nominate candidates to fill Supreme Court vacancies? And is a sitting Senate obligated to consider the President’s nominee?
The relevant Constitutional text is Article II, Section 2, Clause 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, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law ...
A couple of issues, both of which are, and would be perceived as, trivial in a more sane political climate.
o The words "President" and "Senate" are preceded by a definite article: "The".
The use of the definite article means that there is only one President: the one President who is the incumbent, sitting President at the time the vacancy occurred. Only this President has the power to nominate. Likewise, the Senate: "the Senate [and President] shall [jointly] appoint". This refers to the Senate that is seated at the time the President nominates a candidate to fill the vacancy. "The President" refers to the person who fills the office of Chief Executive here-and-now, not at some time in the indefinite future. "The Senate" refers to the Senate as constituted at the time it receives the President's nomination, not some hypothetical Senate as composed in some hypothetical future.
o The word "shall", each time it occurs, refers to an action that is mandatory, within the ordinary limitations of time, space, and causality, and in no case refers to an action that is strictly optional.
The word “shall” is important. Rather than get lost in technicalities, suffice to say as a “first approximation” that “shall” usually denotes actions that are mandatory in the sense that any failure to perform a “shall” amounts to breach of contract through dereliction of duty. (Of course, there are exceptions, e.g., wars / riots, “acts of God”, if the action required by the “shall” is illegal, etc. As I said, there are technicalities.) The word “will” is “softer” in the sense that “will” actions are desirable, perhaps even borderline mandatory, but not strictly so, e.g., the President will throw the first ball to begin the baseball season, but he shall not do so; the President will appoint a national security adviser, but he shall not do so; the President shall give a State of the Union address, but only will do so verbally; etc. This principle has two consequences vis a vis appointing “Ambassadors … Ministers and Consuls … Judges of the Supreme Court … “, etc.
o Nominating is the President’s business alone -- that is the business of the incumbent / sitting President -- and it is hard-core mandatory: the President … shall nominate (emphasis added)
The President may, and a wise President always will, seek advice from multiple sources. But s/he shall not do so, only will do so, because the constitutional buck stops with the President alone.
o Actually appointing is the joint business of the President and the Senate, acting in concert. (Of course, during the Obama years, the “concert” sounds like it were written by John Cage under the influence of a batch of bad Ecstasy, but this changes nothing constitutionally.) Note that appointment does not happen, absent the “Consent of the Senate”. So the “shall” applies equally to the “Consent of the Senate”. “Consent” is by definition discretionary: the Senate does not have to consent, “compelled consent” being an oxymoron. But “consent” also implies consideration … which is a “shall” item.
So the answer to both parts of Question 2 is “Yes”.
(Incidentally, if I hear a Republican one more time piously invoke solicitude for "giving the people a voice" in the selection of a successor to Justice Scalia, I am going to do my best impression of Linda Blair in the pea-soup-vomit scene of The Exorcist. So please maintain a discreet distance. And don't be surprised if I keep throwing this up to you ... yeah ... I know ... sorry ... sheesh! I am not a lawyer, least of all a constitutional lawyer. But I -- even I -- find no similar solicitude for "giving the people a voice" in Article III of the US Constitution, except in the very indirect sense of the People electing the President who nominates and the Senate that confirms. The. People. Were. Intended. By. The. Framers. To. Have. No. Direct. Voice. In. The. Appointment. Of. Supreme. Court. Justices. Period. Full stop. Carriage return. Line feed. And by the way, there were very good and sufficient reasons, both historical and political, for this. What part of this do you not understand? When my nausea subsides, I would be more than happy to enter into such a discussion.)
Note that there are no qualifications – to resort to sophisticated “con law” technical language, no “weasel words” – in Article II, Section 2, Clause 2. The text of the Constitution does not say The President shall nominate … unless s/he is in the final year of a second term, in which case the nomination shall be postponed until the new President has been inaugurated. The Constitution does not give us that option. Least of all would a conscientious, good-faith originalist reading of the Constitution allow for such. When I hear ostensibly rock-ribbed and square-jawed "strict constructionists" like Ted Cruz and Mitch McConnell indulging in such shameless constitutional fantasies, especially in the name of replacing Justice Scalia, the Court's Originalist-In-Chief, I feel yet another urge to emulate Linda Blair. They give hypocrisy a bad name.
Now, the Constitution certainly makes ample allowance for the vagaries of circumstance and for just plain common sense, and there is a web of case law and precedent pertaining to same. If Justice Scalia had died during, say, the last two weeks of President Obama’s final year in office, or if he had died while the President was consumed with directing a regional war in the Middle East, etc., no one would expect replacing a Supreme Court Justice to be high on the priority list. But in a time of relative peace with ten-plus months remaining in the President’s final year in office – and with the nomination-to-confirmation process taking an average of much less than half that time -- there is no reasonable justification for the President – any President – to, as Donald Trump said, “Delay! Delay! Delay!” -- or for Congress to do so, either -- especially with cases pending on the Supreme Court’s docket (e.g., the Texas case questioning whether a Texas law separating abortion clinics by an average of several hundred miles is consistent with the Casey criterion of “undue burden”). But even then, even under those circumstances, a President might legitimately be expected to hand his successor at least a hand-written, back-of-the-envelope list of names and qualifications as the two walk out of the White House together.
The “shall” remains a “shall”, and also remains binding on the presently incumbent President and the presently sitting Congress. The Framers were smart enough to know that even lame ducks – which this President certainly is not -- can still walk, even if they cannot fly.
James R. Cowles
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