Legal Theory Blog

More from Rappaport on the Nuclear Option & the Filibuster
My colleague Michael Rappaport responds with his usual intelligence, vigor, and clarity to my comment on the op/ed that he and John McGinnis wrote concerning the so-called “nuclear” option to end filibuster’s of democratic nominess. Here are his comments (in red), with some further reflections:

First, the text of the Constitution does not expressly say that the Senate has an obligation to advice and consent. It only says “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.”

I think we have a disagreement here. I would think that “shall” implies obligation, and that given the structure of the clause it is clear that the obligation rests with both the President and the Senate. The clause that Mike has in mind would be more felicitously worded, the President shall nominate, and if the Senate chooses to give advice and consent, shall appoint . . .” I recognize that there is some room for disagreement about the import of the text, as I think Michael would also concede. Hence, we turn to history. Michael continues:

Second, Larry relies on a statement made by George Washington, suggesting that the Senate functions as an executive council when it advises and consents and that the President could determine where and when they meet. (Washington did not say the President could govern the Senate’s procedures, but perhaps one might infer that claim.) While Washington’s views are always interesting, that the Senate did not follow his position might be thought to be even more significant.

I am a keen admire of Michael’s argumentation, but, in this case, it is my opinion that his argument is nonresponsive to the argument that I made, which explicitly acknowledged the Senate’s response and explained why that response is evidence for a Senate duty:

[E]arly in the history of the Republic, the settled practice became that the Senate would remain in its own chamber, but would give the President advice and consent within a reasonable time. Although Washington’s specific proposal was not adopted, his understanding of the fundamentally executive nature of the Senate’s role in advice and consent provides an important insight into the meaning of the Article II, Section 2, Clause 2. From the text and early history, a general principle can be adduced. This general principle is that advice and consent must be timely. President Washington believed that this principle could be implemented by giving the President the authority to demand advice and consent when he deemed it necessary. The first Senate countered by providing advice and consent that was timely, while reserving to itself the authority to schedule its own executive sessions.

Significantly, there is no historical evidence that any member of the Senate rejected Washington’s assertion that the President could demand the advice of the Senate on his schedule. Rather, the response was to give advice and consent at at a place of the Senate’s choosing. Of course, no one can doubt that the President may call the Senate into session to ask for its advice and consent, because U.S. Const. art. II, S. 3 provides: “[The President] … may, on extraordinay Occasions, convene both Houses, or either of them ….”

Third, the claim that the Senate must follow the procedures established by the President seems inconsistent with the constitutional text. The Constitution provides that each house shall determine the rules of its proceedings. Thus, it is the Senate, not the President which determines when it votes and whether a filibuster is allowed. Larry argues that the advice and consent function is part of the executive function, but even if that is true, that does not mean that the Senate does not decide on its own procedures when performing that function. The Rules of Proceedings Clause applies to all proceedings of the Senate, not merely legislative ones.

This misconstrues my argument–which is not that the President can establish the Rules of the Senate, but rather than the President plays a special role when he asks for advice and consent, and that this special role is evidence that the Senate has a constitutional obligation to give advice and consent in a timely fashion.

Finally, Larry argues that there is an obligation, as informed by the Recess Appointments Clause, that the Senate respond to a nomination within a particular session. I don’t really see how this obligation is imposed by the constitutional text. Moreover, while it might be convenient for the Senate to respond so the President can know what further actions he should take, a filibuster can also communicate to the President that the Senate minority will not consent to the nomination. President Bush can then decide whether to nominate someone else or to continue with his nominee. Similarly, if the Senate were to turn down the President’s nominee, he could decide to nominate that person again or to nominate someone knew.

Michael says he “doesn’t see how this obligation is imposed by the constitutional text,” but he neither acknowledges nor answers the arguments that I made in the letter to Senator Cornyn (I’ve interjected some new material in blue & slightly edited the text):

[T]he duty to give timely advice and consent means, at a minimum, that the Senate should vote on nominations during the Session in which the nomination is made. The text of the advice and consent clause when read in light of the early historical practice provides compelling evidence that the Senate has a constitutional duty to give advice and consent to the President. From the existence of the duty, it follows that the duty must be completed in a timely fashion. If the Senate has a constitutional duty to give advice and consent, it cannot escape that duty through indefinite delay. The constitution does not provide a specific period of days, and hence it might be argued that the Senate may wait for months or even years before acting on a nomination. There is, however, strong evidence from another provision of the Constitution as to the outer limit of constitutionally permissible delay. The Recess Appointments Clause, Article II, Section 2, Clause 3, provides:
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

This provision strongly suggests that the founders contemplated that the Senate would give and advice and either grant or deny consent within the session in which the nomination was made. Any delay of advice and consent beyond the session in which the nomination was made would imply a power on the part of the Senate to force the President to accept a vacancy. (This argument assumes that Michael is right and that the Recess Appointments Clause would not empower the President to fill such vacancies.) This structural feature provides independent support for the conclusion that we have already reached: it would be a breach of the Senate’s constitutional duty.

I’m sure that Rappaport has in mind a specific reftuation of my argument and reasons in support of his alternative reading of the text, history, and structure. I look forward to hearing them. Read Rappaport’s post!