Professor Alison Peck
West Virginia University College of Law
This week, I and 14 other law professors from West Virginia University sent a letter to U.S. Sen. Shelley Moore Capito, R-W.Va., urging her and her Senate colleagues to vote on the nomination of Chief Judge Merrick B. Garland to the United States Supreme Court.
Writing in our individual capacities as West Virginia citizens and as legal scholars familiar with the Constitution and its separation of powers principles, we ask that Senator Capito urge Senate Judiciary Committee Chairman Chuck Grassley to hold hearings and Senate Majority Leader Mitch McConnell to schedule a vote on whether to confirm Chief Judge Garland’s nomination. The Senate should move now to fulfill its constitutional duty to decide whether to consent to the president’s nomination.
The Appointments Clause states that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the Supreme Court.” The “Appointments Clause” appears in Article II of the Constitution, which sets out the powers of the Executive branch. (A separate section, Article I, pertains to the powers of Congress.) The Constitution clearly gives the President, not the Senate, the power to appoint Supreme Court justices. The Senate’s role is limited to advice and consent. That role cannot be understood in a way that strips the president of his constitutional appointment power.
Senators Grassley and McConnell claim that the Senate can refuse even to consider Chief Judge Garland’s nomination because this is the last year of President Obama’s term. The Constitution contains no such exception to the Senate’s duty to fulfill its advice and consent role. Nearly 300 days remain in President Obama’s term. If the Senate can refuse to perform its constitutional role during the last 300 days of a president’s term, logically it could also refuse to act during a president’s last 600 days, or last 1200, or indeed, all 1460. Such an interpretation would eviscerate the Appointments Clause, effectively removing that power from the president’s constitutional powers. Senate Republicans’ interpretation runs roughshod over the constitutional principle of separation of powers, in which the powers delegated to one branch of government may not be performed by another.
The Senate’s interpretation is also inconsistent with the intent of the Framers. In the Federalist Papers, Alexander Hamilton argued for placing the appointment power in the Executive rather than Congress in order to avoid precisely the kind of political advantage-seeking that the Senate is currently practicing. Hamilton argued that the President, as the sole decision-maker in selecting the officer to be appointed, would feel a greater sense of personal weight than a body in which this obligation was diffused. Hamilton also argued that, if Congress were to have the appointment power, decisions would be based on political advantage: “The choice [of nominee] … will of course be the result either of a victory gained by one party over the other, or of a compromise between the parties. In either case, the intrinsic merit of the candidate will be too often out of sight.” This is precisely the result of the Senate’s current inaction.
Nor was the Senate’s right to give (or refuse) consent intended to entail a right to refuse to consider a candidate at all. Hamilton dismissed the argument that the Senate might hold up the
president’s nominations, noting that “this could only be to make place for another nomination by himself.” If the Senate failed to consent to a nominee, Hamilton reasoned, the president had the power and duty to choose again. Faced simply with another presidential nomination, the Senate would have no motivation to reject a candidate but for “special and strong reasons.”
What might constitute “special and strong reasons”? Hamilton reasoned that Senate advice and consent was necessary “to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.” Members of the Senate do not and have never contended that Chief Judge Garland is such an “unfit character.” On the contrary, when Chief Judge Garland was nominated for the D.C. Circuit, Senator Orrin Hatch said, “I know him personally, I know of his integrity, I know of his legal ability, I know of his honesty, I know of his acumen and he belongs on the court.” Other Senators, even those who did not support Chief Judge Garland’s previous nomination, expressed confidence in his qualifications and character.
The Senate Republicans’ position is not simply unfortunate; it is unconstitutional. Senator Capito and her Senate colleagues should take prompt action on Chief Judge Garland’s nomination.
— Alison Peck is a professor at West Virginia University College of Law.