The appointments clause, Constitutional mandates and Constitutional expectations
There has been quite a bit of discussion the past couple of days regarding the senate repubs decision to stonewall any SCOTUS nominee put forward by President Obama. Much of the discussion focuses on whether the repubs are violating some Constitutional duty to hold hearings and a vote. Many, including myself, have pointed out that the appointments clause and its history support the conclusion that there is nothing in the Constitution that mandates that the senate to do anything with a Presidential nomination if the majority that controls the Senate chooses not to do anything. There are several examples (almost all from the 19th Century) of SCOTUS nominations not getting an "up or down" vote because the nomination wasn't acted on after being referred to committee or because the nomination was tabled or the subject of a procedural motion or motion to postpone consideration that prevented any action from taking place. In these instances, the nomination technically is still alive, although most of the time the President withdraws the nomination since its clearly not going anywhere. It also is not that rare for other types of Presidential nominations (ambassador, lower court judge, cabinet/subcabinet post) to get stalled out without any consideration (including no hearing) and such nominations are covered by the same appointments clause language as SCOTUS nominations.
The issue is the difference between Constitutional mandates and Constitutional expectations. As it turns out, this was the subject of a lively discussion I was part of more than 30 years ago in my Con Law class (team taught by a pretty high level group of professors that included noted Constitutional Law scholar Herbert Wechlser and future Supreme Court Justice Ruth Bader Ginsburg).
The issue that was presented to us revolved around the creation of the Supreme Court. The Constitution states that "the judicial power of the United States shall be vested in one supreme court, and such inferior courts as Congress may ordain and establish." It also states that the President "shall nominate, and by and with the advice and consent of the Senate, appoint ambassadors, other public ministers and consuls, judges of the supreme court and all other officers of the United States whose appointment is by law required to be made by the President with the advice and consent of the Senate.
What was pointed out to us was that there is nothing in the Constitution that deals with how the Court is to be created, how many justices it will have and various and sundry other matters relating to the Court's operation. It was further pointed out to us that while the Constitution was ratified in June 1788, the first president didn't take office and the first congress did not convene until March 1789 and that first Congress did not pass legislation establishing the number of Justices at six until July 1789 and the first Supreme Court didn't convene until February 1790 -- so the country existed for nearly two years without a Supreme Court.
The questions that we were asked to consider included the following: What if Congress had created a Court with only one justice (such that whenever there was a vacancy there would be no Court)? What if the Congress had not acted to create the Court at all? What if the Congress created the Court but the President refused to nominate anyone. Could the Constitutionality of such actions be challenged? And who would hear the challenge if there was no Court to hear it?
The point of the exercise was to drive home the point that there are Constitutional mandates that can be enforced through legal processes, and there are Constitutional expectations that can only be enforced through the political process. If the first Congress had not created the Court, the answer would have been for the voters to either replace Congress or get an amendment to the Constitution passed that established a mechanism for creating a court and for forcing action to fill vacancies.
That is what we face now: a Senate that is defying Constitutional expectations, but not violating any Constitutional mandate. There can be no legally enforceable mandate for the Senate to take any specific action on a proposed SCOTUS nominee just as there was no legally enforceable mandate for the Congress to set up the Court and bring it into existence together with the President (even though the Constitution mandates that such court is where the judicial power shall be vested).
There is no doubt that a Supreme Court with a full complement of justices is to be preferred over a court with a lengthy vacancy. But the current law governing the Court's operations allows the Court to function with as many as three vacancies (a quorum being specified as six justices).
Ultimately, it will be up the voters, and our ability to convince the voters, to either persuade the Senate to reverse course or to vote out the obstructionists. Its not something that can be addressed through a legal action.
= new reply since forum marked as read
