Does the New York Constitution Require A Senate Vote For A Judicial Nominee?

Barack Obama, Merrick Garland, Kathy Hochul, and Hector LaSalle walk into a bar.

Think back to February 2016. Shortly after Justice Scalia's passing, Senate Republicans immediately coalesced on a strategy: any nominee by President Obama would not get a floor vote, let alone a confirmation hearing. Almost just as quickly, a constitutional argument formed out of the ether: the Senate had an obligation to vote on a President's nomination to the Supreme Court. I was an early critic of this view. The Harvard Law School Federalist Society Chapter invited me to debate this topic. Alas, no one on that august faculty was willing to debate me. So I debated myself. I articulated the views that Tribe and others advanced, as charitably as I could, then responded to those views. Seven years later, I had thought this argument would recede into history. It was not to be.

In New York there is a conflict between the executive and legislative branches. Governor Kathy Hochul nominated Hector LaSalle to serve as Chief Judge of the New York Court of Appeals (the highest court in the state). Progressives in the state charge that LaSalle is too moderate, or even (gasp!) conservative. I have zero interest in the politics of this internecine battle in a deep blue state. But there is a constitutional angle.

LaSalle might have enough votes to be approved on the Senate floor--especially if Republicans back the nominee. But it is not clear he has enough votes to get out of the judiciary committee. Aha! Governor Hochul has argued that the state Constitution requires the full Senate to vote on her nominee. The committee vote is irrelevant.

"He'll have his hearings; he'll answer questions; and then as required by the Constitution, the full Senate must decide because the Constitution says it's on the advice and consent of the Senate."

Garland redux! Or more precisely, this argument echoes the position raised in Walter Nixon v. United States. In that case, a Senate committee heard evidence in an impeachment proceeding. Then the full Senate convicted Judge Walter Nixon (not the former President). Nixon argued that the full Senate must hear all of the evidence, and that role could not be delegated to the committee. The Supreme Court found this issue was a non-justiciable political question, so the merits were never resolved. Still, I am skeptical that Nixon was right about the United States Constitution. The Senate, pursuant to the Rules of Proceeding Clause, has broad discretion over how to structure its affairs. I think it would be appropriate for a Senate to create a committee to gather evidence. The Senate could likewise decide that only a nominee that passes through committee can be presented for a floor vote. There is no obligation for the Senate to take a vote on a nominee.

Likewise, I think Governor Hochul has an uphill battle. Article VI, Section 2(e) of the New York Constitution provides:

The governor shall appoint, with the advice and consent of the senate, from among those recommended by the judicial nominating commission, a person to fill the office of chief judge or associate judge, as the case may be, whenever a vacancy occurs in the court of appeals;

I have zero expertise in the New York Constitution, but I struggle to see how this text requires the Senate to take any action on a nominee. Then again, during the Garland Saga, constitutional law professors argued that the phrase "advice and consent"imposes an obligation on the United States Senate.

Politico quotes the chair of the New York Senate Judiciary Committee, who rejected this argument:

Hoylman-Sigal, on Tuesday: "The Constitution does not require a floor vote, because in addition to the Constitution, we have Senate rules, and certainly it's within the Senate's prerogative to decide how to proceed with its own votes, in committee and otherwise."

Based on a quick read, Article III, Section 9 includes something similar to the Rules of Proceeding Clause in the federal constitution:

§9. A majority of each house shall constitute a quorum to do business. Each house shall determine the rules of its own proceedings, and be the judge of the elections, returns and qualifications of its own members; shall choose its own officers; and the senate shall choose a temporary president and the assembly shall choose a speaker.

If this provision is analogous to the federal standard, it would seem that the state Senate can establish its own rules. Requiring a committee vote before a floor would be well within that discretion. At least one law professor agrees:

"I go with the Senate on this one," said Richard Briffault, a professor at Columbia University and an expert on state constitutional law. "The Constitution doesn't specify any particular procedure the Senate is supposed to use, so that means, in my view, the Senate can use whatever procedure it wants."

Does the United States Constitution impose a duty on the Senate to vote on a nominee? Does the New York Constitution? Everyone, switch sides!

In times like these, I'm reminded of a memorable image Adriane Vermeule presented:

The second possible future I call the Merchant/Ivory Ballroom Scene. Think of the moment in any movie adaptation of a Jane Austen novel when two lines of dancers switch to opposite sides of the ballroom. Then the dance goes on as before. The structure of the dance at the group level is preserved; none of the rules of the dance change; but the participants end up facing in opposite directions.

So, Barack Obama, Merrick Garland, Kathy Hochul, and Hector LaSalle walk into a bar…

Update: The Senate Judiciary Committee rejected LaSalle by a 10-9 vote.

The 19-member committee voted 10 to 9 against moving Justice LaSalle to a full vote on the Senate floor. All 10 who voted against the judge were Democrats; two Democrats voted in favor of Justice LaSalle, while one Democrat and all six Republicans voted in favor "without recommendation."

Comments

[David Nieporent]

So I debated myself.

Heh. I think we have reached Peak Blackman.

[santamonica811]

It's an interesting look into the way his mind works. (Hence: Peek Blackman) 🙂

[Lee Moore]

We know he has a bit of an ego.

But, Shirley, isn't it more of an insight into the Harvard Law School Faculty, who couldn't or wouldn't put up an opponent on this matter of apparetly vital constitutional moment ?

[StellaLink_the dog]

What is the opinion of the "Harvard Law School Federalist Society Chapter" by the university faculty as a whole? Is it customary for liberal Harvard faculty members to debate opponents most known for vainglory, tireless self-promotion, and fulsome self-praise?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

You mean all politicians, woke faculty, and marginal students and scientists who would be baristas and Uber drivers if not for federal subsidies?

[StellaLink_the dog]

What? Are you lost or are you having an ischemic event?

[BravoCharlieDelta]

He definitely does sound vaxxed. So could be.

[santamonica811]

Stella,
In all seriousness, I think there are several possible explanations for Harvard's refusal to debate Josh here.
a. We are unwilling to debate Josh or any other conservative about this topic.
b. We are unwilling to debate Josh on this issue, but would be willing to debate another conservative (who we feel is a more serious scholar).
c. We are unwilling to debate Josh on any issue (see, above, for lack of seriousness), so the actual topic is irrelevant.
c. We are afraid to debate Josh on this issue, as we have no confidence in the merit(s) of the position that Josh opposes.

And there are, I'm sure, other explanations that I'm not thinking of. Given the interest in this subject, I suspect that Harvard Law, writ large, simply doesn't take Josh seriously. [But that's wild speculation on my part . . . I didn't attend law school there, and even if I did; I would, of course, have no insight into the secret motives of the faculty and administration currently there.]

[StellaLink_the dog]

"In all seriousness"

You sure know how to hurt a person.

[GKHoffman]

b and c do not ring true. If Tribe and others thought they would be certain to obliterate Blackman in a debate forum, they would leap at the chance. But anything less than an early round knockout would be a blow to their reputation. Better not chance it.

[David Nieporent]

e. Josh sent us an email about his willingness to debate, but that part was buried four pages down after discussions of his proposed scheduling of his trip to the airport, his travel habits, his hotel, how the room should be arranged to show off his good side, reminiscing about the time people protested one of his appearances, and his taking credit for the term "rocket docket," and we never got that far so we didn't even realize what he was proposing.

[LawTalkingGuy]

I mean it’s totally possible that they just didn’t want to spend time with him at all on a personal level based on what they know about him.

[Alpheus W Drinkwater]

It's also possible that the argument is a complete straw man of Prof. Blackman's creation and no one on the Harvard Law faculty believed or argued that the Senate has a constitutional obligation to vote on the nomination.

[Lee Moore]

Quite possibly.

Though he does begin his talk saying "so many people in this building have taken an issue on this debate" (which looks worse on paper than coming out of the mouth.) So he may have made it all up, but if so, he's all in on the making it up front.

Nevertheless he did get the HLS Federalist Society to organise his talk / debate. Also I vaguely remember that there were lots of folk - even on here - insisting that the Senate had a constitutional duty to hold an up or down vote.

However I will concede that my memory may be faulty on this, since I believe Volokh was behind the WP paywall in 2016, and I have never given that organisation a red cent. So it's possible that what I'm remembering is the VC discussions on the Gorsuch nomination, reheating the Garland fuss.

[bernard11]

I vaguely remember that there were lots of folk – even on here – insisting that the Senate had a constitutional duty to hold an up or down vote.

I (also vaguely) recall that those insisting that the Senate had a duty to vote based their arguments on norms and whatnot, rather than the Constitution.

[David Nieporent]

Look, it's not a total strawman. I remember that some people actually did make the argument that the Senate had a constitutional duty to vote on a nomination. (Real people — not just rando VC commenters or twitter users; they were names you'd have heard of.) But I don't remember who they were, and the much more common argument was that the Senate had an obligation in the sense of norms.

If I say that a member of Congress has a constitutional duty to show up to work, I'm not saying that it's a legally-enforceable requirement; I'm just saying that it's his job and it's an abdication of his responsibility if he doesn't.

[Alpheus W Drinkwater]

I think that's right, and I think it was that distinction that was causing many people on either side of the question to talk past each other.

[Lee Moore]

That distinction perhaps, but I think there was also a bit of discussion on the actual norminess of the asserted norm.

[Noscitur a sociis]

e. I’m not available at the time scheduled for the event.
f. I don’t feel like I have anything particularly insightful to say on the subject.

Those were the two most common (indeed, to my memory the only) reasons why a professor declined to join a debate when I was organizing Fed Soc events in law school.

[bernard11]

The Harvard faculty?

Why are you blaming the faculty?

First, not many members are actually Constitutional law specialists, and I rather imagine those who weren't were not good candidates for the debate. So maybe a handful, at most, didn't want to debate Josh on this "this matter of apparently vital constitutional moment."

Second, Josh mentions Tribe, but no one else. Is it possible that not everyone on the faculty does shares Tribe's view? In fact, I don't remember this as an argument that was particularly pushed by anyone, but I could be wrong. I mean there were lots of claims that Garland should get a vote as a matter of norms, etc., but I don't recall those being based on Constitutional arguments.

So maybe Tribe was just busy, or maybe he doesn't feel obligated to debate anyone the Federalist Society drags in.

I mean, there is an awful lot of self-glorification in this post, with Josh implying that the entire faculty of HLS was quaking in its boots at the thought of debating this point with him.

I doubt that's so.

[Lee Moore]

I'm sure you're right about Norms. Ol' Norm was certainly up there banging his fist on the bar.

Though when I was out norm-hunting, I discovered that Garland himself had been garlanded in the 1990s, during his quest for a perch on the DC Circuit Court of Appeal. So there are norms and norms.

[Michael D]

Who gives a rat’s butt. Back and forth about this superfluous question is meaningless. A further demonstration of the failure to stay on topic.

The issue here is about the NY Appeals Court nominee and the NY Constitution and all these people are discussing a non-debate from 6-years ago that is only used as an example to further Blackman’s narrative.

[Lee Moore]

Seems to me that whether a Senate has a constitutional obligation to vote on a nominee, and whether it has the constitutional right to set its own rules, are different questions.
One is about what is has to do, the other is about how. However there’s nothing in the words that imply any duty imposed in the Senate. Instead it’s a condition imposed on the President- you can’t appoint unless this thing has happened first.

[Ben_]

If the President/Governor is not constitutionally required to meet a deadline for filling the vacancy, then the Senate isn’t either.

The Senate did not vote to decline to move forward. They can still do it any time. Like the year 2999.

[The Margrave of Azilia]

The joke’s on the Republicans – as Attorney General, Garland can sue them, and the Senate, for not voting on his nomination.

[I Callahan]

No, I think the Republicans got the better end of the deal here. It’s way better to not have that scheming hack on the USSC.

[MatthewSlyfield]

I'll put forward something that may be a middle ground.

I do not think the language used in the US Constitution means that the full Senate is obligated to hold a vote on every nominee.

On the other hand I do think it does mean that the committees shouldn't be allowed to control whether or not the full Senate holds a vote (that is the committee can not prevent a vote by the full Senate).

[ReaderY]

Committes can’t control in the US Senate if enough Senators want something. However, a discharge petition requires a super-majority, which can be difficult to come by.

[Lee Moore]

Cannot a majority simply change any Senate rules that require a supermajority ? I seem to remember something along those lines happening not so long ago.....

[TTT]

Technically, you it can be changed with a simple majority. BUT, the motion to change the rule is subject to a filibuster which takes a super majority to end debate. Then, there is the nuclear option:

https://en.wikipedia.org/wiki/Nuclear_option

[MatthewSlyfield]

I'm saying it shouldn't require a discharge petition at all. The full Senate should be free to simply ignore the committee.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

How exactly do you propose they do that? Hold a vote on whether to hold a vote?

[StellaLink_the dog]

As noted above — by invoking the “nuclear option.” The senate equivalent of going postal.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Ah, yes, another vote.

[Publius_2020]

Ultimately that comes down to the rules that the Senate adopts for the Chamber. Is there a rule that allows a Senator to force a vote on "X"?

The US Senate is organized in a way that seems to say "only in rare instances, or when you have 60 votes." The question here is whether the NY Senate is organized in a similar way. Unknown answer at the NY state level.

[Lee Moore]

Yup, but as TTT and Stella have explained, if the majority really want a vote, they can arrange one. A committee can’t block anything, nor a minority of Senators, unless the majority is willing to let them.

I don’t know – and I wonder – whether as in the last Congress where it’s 50-50, one of the 50s can successfully prevent business by denying a quorum to the other 50. I would doubt that the VP can break a tie on this, as it isn’t a tie, it’s just the lack of a majority.

Though if no Senator on the team trying to block business is there to object to the lack of a quorum, maybe the courts would decline to interfere with a later claim in court that the Senate had done something with no quorum in place.

[Social Justice is neither]

How do you know how long it will take the committee to vet the nominee before you start? How do you prevent slating the vote in the next congress where it's potentially no longer the current President's pick?

At some level it's a game but the people that foamed at the mouth over Garland had no problem with the treatment of Miguel Estrada so why should these partisan hacks be taken seriously only when it benefits them?

[FSE]

The difference between Garland and LaSalle was that in 2016, nobody knew for sure whether the Senate was required to vote. Today, we know that the Senate isn’t required to vote.

We know this because the Senate didn’t vote on Garland in 2016, and nobody could force them to do so.

[Bob from Ohio]

NY Senate and US Senate are not the same. Different Constitution, different internal rules.

[MatthewSlyfield]

Garland was not the first nomination on which the Senate refused to act, there are several cases of that in the 19th century.

[ReaderY]

Even if state senate rules were subject to judicial review, it seems hard to understand how a committee structure could be objected to.

Committees, including referrals to committee and a need for many measures to pass through a committee before coming to the floor, were part of the English Parliament long before American independence. They were well-established ways legislatures conducted themselves when these constitutions came into being. If the framers of a state’s constitution had wanted to prohibit their legislature from adapting long-established, widely-accepted rules of procedure, surely they would have said something about it.

The New York Senate is as within its rights here as the US Senate was with Garland.

[Bob from Ohio]

She should use the usual New York method, bribery.

How many committee votes does she need? Gotta be a nephew or two who want state jobs.

[Rev. Arthur L. Kirkland]

What is the usual Ohio Republican method?

The customary backwater conservative Ohio method?

This site can't handle more than two links; readers are invited to find the results of another Ohio method -- the Ohio Walleye Trail Cheating scandal.

An Ohio resident -- especially a Republican from Ohio's uneducated, superstitious, bigoted, can't-keep-up stretches -- throwing stones at New York? Nipping at ankles, nipping at heels.

[BravoCharlieDelta]

In my opinion, both constitutions are silent on how the respective Senates are supposed to advise and consent.

Further, it seems to be mere goal-seeking partisan hackery to suggest that one particular practice is required when it's so obviously missing from the text.

[John F. Carr]

In Massachusetts the legislature is theoretically required to vote on certain initiative petitions. Nobody has standing to force a vote and legislative leaders have great power to prevent a vote. Failure to hold a vote is the same as a unanimous vote against. It was the same for Garland and it will be the same in New York. If the leader of the Senate were brought on board New York would find a way to make a vote happen.

[Ben_]

A vote against a nominee ends the matter and creates a record of the advice and consent of the Senators. Not voting leaves the matter open and the advice and consent of the Senators is legally entirely unknown.

[Krayt]

The consent is not given until it is. The advice is all over the newspapers.

[OtisAH]

“I have zero expertise in the New York Constitution” is how this post should have started. And ended.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

“I have zero expertise in Volokh or Blackman blogging” is how this comment should have started. And ended.

[Noscitur a sociis]

What additional expertise do you think is lacking?

[I Callahan]

Maybe you should ask Otis that question…

[Noscitur a sociis]

What, may I ask, the fuck are you talking about? Prof. Blackman admitted his lack of expertise in the subject matter of his post; OtisAH did not admit a lack of expertise in the subject matter of his comment, and self-evidently possesses the requisite expertise (having read a post by Prof. Blackman). Which makes Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf‘s “I am rubber you are glue” schtick even lamer than usual.

[LawTalkingGuy]

This is his alt, right?

[Sarcastr0]

No, just our resident compulsive contrarian.

[Tallman]

>LaSalle might have enough votes to be approved

That's certainly a major factual difference. Forcing Garland to enture the 'modern comfirmation process' when he clearly didn't have the votes would have been cruel and unusual punishment.

[Dan Schiavetta]

He clearly did. That's why McConnell didn't allow a vote.

[StellaLink_the dog]

Probably true. But, refusing to allow Garland a vote on the senate floor was very dangerous fun. At the time, it appeared that Clinton was the likely next president and if that had come to pass, she would likely have nominated someone less acceptable to the Republicans than Garland and she would likely have gotten the nominee through.

[DRM]

Not that dangerous. The obvious move in that case was to confirm Garland in the lame duck session, even if Obama declared he withdrew the nomination. Then let the Democrats try to figure out how to maneuver to keep Garland off the Supreme Court after having spent all year arguing he should be on it.

[StellaLink_the dog]

Easy. Don't have Obama withdraw the nomination, have Garland withdraw his name from consideration.

[Krayt]

Ego will turn down SC position for the good of the party, in this non-political effort.

Where to begin...

[DRM]

So what? Confirm him anyway, force him to resign the seat after actually getting it.

Garland resigning a confirmed seat on the Supreme Court after the election to make way for "someone less acceptable to the Republicans" isn't something that actually could be stopped by confirming him before the election.

[Bob from Ohio]

"she would likely have nominated someone less acceptable to the Republicans than Garland"

1. This is conventional wisdom but its more likely she would have gone with Garland because "he was robbed"

2. Garland would have been no different on the court than "someone less acceptable". You haven't noticed that Dems, unlike GOP nominees, on the court always vote together on anything political or controversial?

[LawTalkingGuy]

Yes. That’s why all states have expanded Medicaid. Oh? I’m being told you’re full of it (again) and millions don’t have Medicaid insurance in part because Kagan and Breyer sided with the conservatives on that question. .

Also to the extent there is a consistency among liberals, maybe it’s because they’re better lawyers and judges who come to consistent and results instead of bullshitters proclaiming the gospel of originalism and textualism until it becomes slightly inconvenient to them and then switch suddenly. Maybe conservatives switch more because despite pretensions to the contrary they aren’t actually experts in all matters for all time and they realize that despite their best efforts, they can’t always out-lawyer the libs.

[Lee Moore]

Kagan and Breyer voted with the R nominees, because it didn't make any difference to the result.

The result on Medicaid, that is. They were going to lose anyway.

But, in all likelihood, they were able to trade their two worthless Medicaid votes for Roberts' single - result tipping - vote on the mandate.

What a great deal !

[benji]

Why would anyone agree to that deal?

[Lee Moore]

Excellent question. What is a SCOTUS Justice trying to achieve ?

(a) to apply the law "blindly", according to his or her interpretative scheme, without fear or favor; and as to the consequences, ruat caelum, or
(b) to get the result he or she prefers, regardless of the law (subject perhaps to the constraint of being able to maintain a degree of plausible deniability), or
(c) something else

Plainly, being on the "You get my decisive vote on the mandate, and I get your two doesn't make any difference votes on Medicaid" side of the deal, makes no sense for (a) or (b). So we're looking at (c).

It has been suggested that a possible (c) might be :

"I am desperate to preserve and enhance SCOTUS's reputation as a straight up ball and strike calling umpire, which never takes politics into account, and simply applies the law as it is. But I have noticed that some decisions are greeted with derision by many people, and we are accused of, and hooted at for, making nakedly partisan judgements. Therefore i am going to advance SCOTUS's reputation for apoliticality, by considering the political ramifications of judgements very carefully indeed, and if possible dodging making decisions that may cause hooting in the newsapers, TV shows and legal academia. Preferably by trying to find a minimalist admin point to kick the political point down the road, but if necessary by smudging myself onto the other side. And also by trying to avoid 5-4 Cons v Libs judgements, by giving ground to get some bipartisan votes."

Or, shorter - "the way to be seen as a straight umpire is to minimise the booing that is audible on the TV. And that requires being very aware of which is the home team."

[Lee Moore]

"Conservative" judges switch because they want to be loved. Not that they ever will be, but they hope and hope, contrary to all experience.

The ones who don't switch are those with obviously ornery personalities like Scalia, Thomas and Alito. Nothing to do with ideology, it's all about personality.

[LawTalkingGuy]

Maybe they want to be loved by getting the law right for once.

[Lee Moore]

someone less acceptable to the Republicans than Garland

The null set. All D nominees are equal - not in intelligence, loquacity, low cunning etc, but in voting when the chips are down.

Really, Republicans couldn't care less whether the Ds nominated Garland or Mao Tse Tung - they'd vote exactly the same way. So it was a zero risk strategery for McConnell.

[Sarcastr0]

Only because reflexive partisans like you spout nonsense like you did.

No, liberal Justices are not interchangeable. Nor do they vote in lockstep. There are stats now; the difference in voting patterns is marginal between conservatives and liberals given their relative numbers.

[Lee Moore]

My offer is still open. A free banana for whoever can find a case, this millenium, at SCOTUS or one of the Circuit Appeal Courts, where :

1. the result was of political significance as between lefties and righties and
2. a D appointee broke ranks and voted for the righty favored result, and
3. that vote switch was decisive - ie if the D appointee had not defected the lefty favored side would have won.

[Publius_2020]

Not clear at all.

Arguments in favor suggested that moderate Republicans *might* vote for Garland based on political philosophy or fear of being called out in a subsequent election. But that was untested. And the GOP had a 54-46 advantage in the Senate, which meant that 7 Republicans could absent themselves from the vote, and the Democrats would not carry the day (47-46 loss).

The bigger strategic issue was that a negative vote on Garland would simply produce a new appointee. And another one after that. So the political consequences of voting on Garland were ultimately bad.

On the other hand, by holding off the vote, McConnell gave himself the double-dip option. If the GOP won in November, he scores the biggest tactical win in modern Senate history. If the GOP lost in November, he simply pushes Garland to the floor for a vote in December, on the theory that Garland is, by far, the most centrist nominee that will ever be seen. It's a win-win for him.

[Mr. Bumble]

...and if you read the update the question in this case is moot.

[Milhouse]

Huh? No, it isn't. It's very much alive. The committee voted not to refer the nomination to the senate. So those who claim the senate has some sort of obligation to vote, found in some penumbra of an emanation of a phantasm, will cry foul. Or fowl -- they'll claim the senate leadership is too chicken to allow a vote.

[Mr. Bumble]

...but he won't be voted on by the full Senate.

[Publius_2020]

Two issues there:

1. Is there an internal procedure mechanism by which a Senator can force a vote?

2. What does the NY High Court say if they are forced to decide the issue?

[F.D. Wolf]

The governor is claiming that the whole Senate MUST vote.

This seems to be different from the process in the U.S. Senate where a negative vote on a nomination in committee still proceeds to the whole Senate and does not kill the nomination. (Though this is just a matter of the rules, which, presumably, could be changed.)

[bernard11]

Progressives in the state charge that LaSalle is too moderate, or even (gasp!) conservative.

Wow. Josh is aghast at the idea that politics enters into judicial nominations.

[jdgalt1]

Leaving aside the difference between the New York State government and the federal government, I would argue that Walter Nixon v. US was wrongly decided. The Constitution spells out the steps that must take place after an impeachment by the House of Representatives, and they are not discretionary, unlike confirmation hearings for appointed officials, which are.

Would you allow either house of Congress to decide by simple majority to override a presidential veto of a bill, or a simple majority of the Senate to ratify a treaty, if Congress merely changed its rules to allow the new procedure? Of course not. Where the Constitution spells out how Congress must do its job, it is absolutely SCOTUS' duty to enforce those requirements if Congress flouts them. Allowing violations to stand creates a constitutional crisis and compels novel forms of intervention.

[LawTalkingGuy]

I don’t think those analogies are apt at all.

We know that bicameralism and presentment are enforceable by the Court like in Chadha, So acts of Congress purporting to be laws without that did not have the required votes (like treaties and veto over-rides) would be considered void and unenforceable by the court.

Further, the court won’t let congress add discretion to where the constitution doesn’t give it any like on judging the qualifications of its members as in Powell v McCormick.

But impeachment/removal is different. And the word they were interpreting, “trial” is different. The votes met the constitutionally required threshold. And the Court correctly observed that inserting itself into this area caused separation of powers concerns. I mean suppose their fellow justice was impeached and removed and the court wasn’t satisfied that the senate did a “trial” for various reasons. in addition to the remedies problem, (do they make them do it again?), it creates its own constitutional crisis: why should congress (or anyone for that matter) abide by SCOTUS decisions in which a member of the court they voted to remove is participating?

The court got it exactly right in Walter Nixon v US.

[David Nieporent]

The Constitution does not in fact spell out the steps that must take place after an impeachment by the House of Representatives. This is the full provision:

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

So it says

1) That the senators must be under oath;
2) That the CJ presides if it’s a presidential impeachment; and
3) It takes a 2/3 vote to convict.

That’s all it says. And #1 and #3 — the two applicable ones — were both true in Walter Nixon’s case. It specifies nothing about any other procedures that must be followed.

[JasonT20]

I would think that "advice and consent" was a term used assuming that the legislative body would actually consider the nominee in some collective way. Leaders of the majority party refusing to bring a nominee for a vote by the whole Senate is ducking the responsibility assigned to them, as a normative matter even if it isn't a requirement.

The only reason McConnell refused to have the Senate consider Garland in any way was because he knew that he would be confirmed if he was. Republican Senators in swing states, at least, would vote for him either because he was a decent compromise nominee* or because they wouldn't have wanted to give a Democratic challenger ammunition against them for being an extreme partisan.

If those who wrote the Constitution wanted the Senate to be able to completely stymie the President on his appointment power, without a vote, then why allow recess appointments? The Senate has gotten around that for decades by hardly ever going into recess, holding pro forma sessions instead. I just think that it is bad government for political maneuvering to leave important positions open for such a long time. I agree, however, that it would take an amendment to force the Senate to actually consider nominees.

(My own preference on how to change the Appointments Clause would be not to force the Senate to hold a vote, but to assume silence to be consent after some reasonable length of time. As a trade, I would eliminate the ability to make recess appointments entirely as anachronistic, meaning that the President would have no way to get around the Senate, even if just temporarily.)

*“The president told me several times he’s going to name a moderate [to fill the court vacancy], but I don’t believe him. [Obama] could easily name Merrick Garland, who is a fine man. He probably won’t do that because this appointment is about the election. So I’m pretty sure he’ll name someone the [liberal Democratic base] wants.” Orrin Hatch, a week before Obama named Merrick Garland as his nominee.

[David Nieporent]

Recess appointments were not about the president being entitled to evade the consent of the senate; they were about situations when the senate was unable to timely act because of the logistical issues of the 18th century.

After all, the senate could also block recess appointments by not going into any sort of recess (as opposed to the pro forma sessions they now hold). The president would be just as stymied but wouldn't have any constitutional way to do anything about it.

[JasonT20]

Recess appointments were not about the president being entitled to evade the consent of the senate; they were about situations when the senate was unable to timely act because of the logistical issues of the 18th century.

Exactly. That is why I said that recess appointments are anachronistic. Since the Senate can convene within days, or even hours, when truly needed while adjourned, there simply is no reason for the President to need to make a recess appointment in the modern world.

[Lee Moore]

The time it takes to travel to Washington is not the only thing that has changed in the past 250 years, though.

There are now zillions of executive branch offices to be filled, and it takes a very long time to fill them, especially if the other side uses all its procedural tricks. (Which the Ds did routinely during the Trump administration, but the Rs have conspicuously failed to repay in kind, during the Biden administration.)

If the consequence was merely that those functions of the federal government for which these tardily, or not appointed at all, officers were to be responsible, simply ceased until such time as the Senate consented, then that would be fine. But what actually happens is that those functions continue, but are performed by the permanent bureaucracy. Which definitely wasn't the scheme the founders had in mind.

[Publius_2020]

>> "If those who wrote the Constitution wanted the Senate to be able to completely stymie the President on his appointment power..."

Hamilton, in the Federalist Papers, explicitly notes that this is a possibility where the Senate and the President disagree. It wasn't non-obvious to the founders.

[JasonT20]

I don't mean to say that the Senate should not be able to turn down every nominee that a President might put forth. What I am saying is that I don't think that Hamilton or anyone else that was involved in writing the Constitution had in mind a blanket refusal to consider anyone at all in order to leave an important post open for the rest of a President's term. The closest thing I found in Federalist No. 76 to what you might be referring to was this:

But might not his nomination be overruled? I grant it might, yet this could only be to make place for another nomination by himself. The person ultimately appointed must be the object of his preference, though perhaps not in the first degree. It is also not very probable that his nomination would often be overruled. The Senate could not be tempted, by the preference they might feel to another, to reject the one proposed; because they could not assure themselves, that the person they might wish would be brought forward by a second or by any subsequent nomination. They could not even be certain, that a future nomination would present a candidate in any degree more acceptable to them; and as their dissent might cast a kind of stigma upon the individual rejected, and might have the appearance of a reflection upon the judgment of the chief magistrate, it is not likely that their sanction would often be refused, where there were not special and strong reasons for the refusal.

He was clearly thinking that the Senate* wouldn't be frivolous with its ability to reject nominees, because the President might just nominate someone else that they wouldn't like. But that isn't what happened with Garland, was it? The entire idea was to run out the clock on Obama's term and hope that a Republican would win and be able to nominate a solid conservative. McConnell knew that doing that wouldn't significantly hurt his own reelection chances, but by taking the heat on himself saved more vulnerable Senators from having to make a decision. That doesn't sound anything like what Hamilton was talking about. The Senate didn't stymie Obama's ability to nominate a Supreme Court Justice. That would have taken a vote by all Senators to reject the nominee. Instead, McConnell did it basically on his own.

[Martinned]

The Federalist papers aren't the Constitution. If that's what they meant, they should have written it into the Constitution. If I was McConnell I would give the White House a list of confirmable judges and dare him to make recess appointments instead.

[JasonT20]

The Federalist papers aren’t the Constitution.

I was responding to Publius_2020, so I wasn't the first to bring them up. That said, they are the most thorough explanation we have of what at least a couple of the people at the Convention thought they were trying to put in place.

If that’s what they meant, they should have written it into the Constitution.

Yes, the text of the Constitution just says that appointments shall be made by the President with the advice and consent of the Senate and does nothing further to explain what that means. That's true of most provisions in the Constitution. I think it left a lot open to interpretation on purpose, given that they were trying to create something new in history.

If I was McConnell I would give the White House a list of confirmable judges and dare him to make recess appointments instead.

So, you would turn it around and have the Senate Majority Leader be the one person with the most power to choose judges and justices? Interesting. Odd to put that kind of authority in the hands of someone elected by the people of only one state, rather than all of them.

[Martinned]

The Senate Majority Leader is chosen by his caucus, who between them represent the majority of the country. (Or at least they would if it wasn't for the rural bias in the Senate, but that's a different discussion.)