I must admit it feels really strange to be channeling Alan Dershowitz, not only because Prof. Dershowitz is still very much alive, but also because, at least on some issues, I share his oft-reviled ability to act as an honest broker by disinterestedly considering constitutional issues from the standpoint of both parties to a dispute. But that is the position I find myself in while reading stories about and pondering the back and forth between Democrats / progressives and Republicans / conservatives regarding the matter of the confirmation of Supreme Court nominees Merrick Garland and Brett Kavanaugh. People on both sides of these controversies seem much more conversant with and concerned about the principles of tennis than those of the US Constitution. Moreover, there is about equal blame to go around. And that final sentence is not a compliment.
As we should all know by now, perhaps better than we ever wanted to know, the President has the power under Article II, section 2, of the US Constitution to appoint various high offices “by and with the advice and consent of the Senate”:
[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he 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 …
Mitch McConnell invoked this part of the Constitution in order to prevent even holding hearings on President Obama’s nomination of Merrick Garland to fill the Supreme Court seat left vacant by the death of Mr. Justice Antonin Scalia. This was obviously an abuse of the “advice and consent” provision of Article II, section 2, but, if we hew strictly to the plain-text language of the Constitution, such an abuse falls short … admittedly by a fraction of a millimeter … of actually contravening the letter of the Document, i.e., what can actually be read off the page, and must rather be considered an abuse of the spirit.
But, as I said in the introductory paragraph of this column, the pro-Garland side and the anti-Kavanaugh side, commit the same sin and to the same degree. Whereas the former is in the business of interpolating non-existent constitutional texts limiting the Senate’s power to convene hearings on a Supreme Court nominee, the latter seems now to be in the business of interpolating equally non-existent constitutional texts limiting the President’s power to even nominate candidates for the Court. The latter argument holds that Presidents who are under investigation for possible misconduct should not be empowered to nominate Supreme Court justices until the President’s guilt or innocence can be ascertained. Again, there is no such constitutional limitation on the President’s nominating power under Article II, section 2. I would challenge anyone to read that text again and point out to me where the actual as-written text contains such a limitation.
A natural response would be to say “Well, then, pass a law”. The proposed law would be intended to inhibit a President’s explicitly delegated constitutional power to nominate individuals to high office. Again, we are talking only about the President’s power to nominate. The power to confirm would still repose exclusively in the Senate. The only other limitation on the appointive power of the President encompasses only “inferior Officers” as determined by acts of Congress:
… the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
But Supreme Court Justices are anything but "inferior". In fact, they are creatures that live in Section III of the Constitution, and as such may not be exempt from the scope of the President’s appointive power of Article II, section 2. Congress may – and, in the past, has – created and deleted seats on the Supreme Court, since the number of Justices is not specified in the Constitution. (In the early Republic, there were six, an awkward number, since it allowed for tie votes. President Franklin D. Roosevelt tried packing the Court with 12 Justices to bias a notoriously recalcitrant Judiciary in favor of the New Deal, an effort which came to grief.) But depriving the President of the power to nominate candidates to the Supreme Court would require a constitutional Amendment, not an ordinary act of the Federal legislature. Furthermore, even if such a law, per impossibile, were passed, it would almost certainly be ruled unconstitutional as a violation of separation of powers. The Senate may confirm or reject nominees for the Court, but Article II, section 2, rather explicitly prohibits Senatorial poaching on the strictly presidential prerogative of nomination.
Furthermore, there is a far deeper problem with the idea of limiting the President's appointive powers, Section V issues of amendment aside. One can argue that it is constitutionally suspect for the Legislature to curtail presidential powers that are constitutionally delegated. For example, the War Powers Resolution seeks to restrain the President's ability to deploy the Nation's Armed Forces, and to do so in a manner that is arguably illegitimate, especially in the absence of an explicit congressional declaration of war. (This is why, as far as I know, there has been no test of constitutionality for the War Powers Resolution limiting the President's ability, as Commander-in-Chief, to deploy the Armed Forces: courts are understandably reluctant to open that can of constitutional and political worms.) It is true that certain 5th- and 14th-Amendment liberties of private citizens may be curtailed, e.g., defendants awaiting trial may be hobbled by being required to wear GPS ankle monitors to track their position, and thereby to infringe on the defendant's "liberty" in the sense of the 5th and 14th Amendments . But such cases are relevant only where criminal activity is a realistic possibility, e.g., a defendant awaiting trial who poses a flight risk to avoid criminal prosecution. And besides, the 5th and 14th Amendments prohibit the curtailment of "liberty" only "without due process of law," a condition which, in the case of a criminal defendant awaiting trial, has presumably already been satisfied by the "due process" of empaneling a grand jury, the issuance of an indictment, etc., etc. What is the anticipated crime and what constitutes analogous "due process" in the case of a President who is under investigation for possible criminal infractions? Absent these requirements, to infringe on a President's Article II prerogatives carries more than a whiff of "anticipatory punishment", of "guilty until proven innocent," especially in the absence of a Bill of Impeachment, i.e., a form of indictment. A President no less than a private citizen should enjoy due process and likewise be presumed innocent until proven guilty. And if a President is innocent, presumptively or otherwise, no restriction on his / her appointive power is justified.
Furthermore, think for a moment: even if such a restriction were to become law, and you got what you wanted … would you really want what you got? Somehow I think not. If a future President should nominate an unpalatable candidate as, say, Secretary of State, such a hypothetical restriction on the nominating President’s Article II, section 2, powers would allow a suitably recalcitrant Congress to launch an investigation into the President’s dry-cleaning bills or parking ticket fine payments or overdue-library-book penalties and thereby delay indefinitely the confirmation of a new Secretary of State.
I liked Merrick Garland. I am biased against Brett Kavanaugh. But, like Prof. Dershowitz, I am over-the-top biased in favor of fidelity to the US Constitution, both its letter and its spirit. The tit-for-tat “gotcha-gotcha-back” pissing contest intended to make Kavanaugh pay for the utterly craven and dishonorable rejection of Judge Garland is unworthy of us all, including Judge Garland. I have a radical suggestion, direct from my séance with the spirit of Prof. Dershowitz: let’s flush the toilet and begin a debate worthy of the Document providing a basis for such dialogue. That Document would be, in case you are uncertain, the US Constitution in all its august majesty, not talking points copied from Fox and Friends.
So let's all agree that it's too damn hot to play tennis during this torrid summer on "the Vineyard", anyway. Instead, let's all kick back and talk baseball with Prof. Dershowitz on the front porch of the general store in Chilmark and cool off -- in more ways than one -- with diet Dr. Pepper and / or Iron City beer.
James R. Cowles
Judge Merrick Garland ... White House ... Public domain
Judge Brett Kavanaugh ... U.S. Court of Appeals for the District of Columbia Circuit ... Public domain
Donald Trump ... White House ... Public domain
Barack Obama ... White House ... Public domain
Mitch McConnell ... US Senate ... Public domain
Supreme Court ... Supreme Court ... Public domain
US Constitution ... National Archives ... Public domain
Alan Dershowitz ... Sage Ross ... Creative Commons Attribution-Share Alike 2.0 Generic