Part II: The Appointments Clause Imposes No Duty on the President To Nominate Supreme Court Justices, Other Article III Judges, and/or Executive Branch Officers. The Appointments Clause Imposes No Duty on the Senate To Confirm Candidates.

Sometimes, elements which are essential to the life, growth and existence of [the Nation] seem for a time to be cast into shadow, obscured, and even destroyed. Yet in the past they have remained alive; they have survived; they have come to the surface again, and they have been the means of a new flowering, which no one had suspected.

—E.P. (1953)

In my prior New Reform Club post, I wrote that the Constitution’s 18th-century use of “shall” is not (consistently) congruent with the mandatory “shall” used in our modern federal statutes. Professor Ramsey agrees in principle: He accepts that the Constitution’s use of “shall” is ambiguous. (See Ramsey: “I would say that all of these describe either a power the President must have ([t]hat is, can’t be taken away by Congress) or things he must do.” (emphasis added)) Surprisingly, Professor Ramsey concludes:

Yes, the President has a duty to nominate [persons to Supreme Court vacancies], and yes [that duty] applies to all offices. “Shall” (in th[e] [Appointments] Clause, though not in all others) means “must,” and of course textually it cannot apply to some offices and not others.... I don’t see why this argument is presumptively untenable.

The problem with Ramsey’s position is that it is just an intuition: he acknowledges the ambiguity, then he proffers his favored position, and finally, he adopts a position without putting forward a reason or justification. Originalism is, or at least it is supposed to be, argument- and evidence-driven. An unreasoned choice, particularly where the existence of an interpretive choice is acknowledged, is simply not enough.

Still Ramsey’s position is bit better than that put forward by some others ... Ramsey at least puts the reader on fair notice of the interpretive choice or decision at hand. For example, Professor Anne Joseph O’Connell wrote:

Under the Appointments Clause, the president appears to have a mandatory duty to make nominations for at least principal officer positions: he “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Officers of the United States.” But that constitutional duty has little content—and virtually no time limits—from case law.

Anne Joseph O’Connell, Vacant Offices: Delays in Staffing Top Agency Positions, 82 S. Cal. L. Rev. 913, 923 (2009) (footnotes omitted) (emphasis added); see also id. at 927–28 (“Various constitutional and statutory provisions impose mandatory duties on the president and often the Senate in filling top positions in the administrative state.”). Professor O’Connell’s and Ramsey’s positions share the same downside: they put forward no argument or evidence in support of their shared position. The virtue of their shared position—and it is a significant virtue—is that they limit the force of their conclusion by using tentative language. They are wise to do so.

Unfortunately, not all share their wisdom. See, e.g., Henry J. Abraham, Justices, Presidents, and Senators: A History of U.S. Supreme Court Appointments form Washington to Bush II, at 19 (5th ed. 2008) (“[The Appointments Clause] means exactly what it says: it is the president’s duty and responsibility to find and nominate candidates for the Supreme Court of the United States (as well as, of course, all lower federal judges) . . . .”); Harold J. Krent, Fragmenting the Unitary Executive: Congressional Delegations of Administrative Authority Outside the Federal Government, 85 Nw. U. L. Rev. 62, 63 n.7 (1990) (“Article II of the Constitution helps ensure such accountability by granting the President the duty to appoint and remove subordinates.”); David F. Tavella & Anne Marie Tavella, Advice and Consent for Federal Judges: A New Alternative Based on Contract Law, 3 Drexel L. Rev. 521, 531 (2011) (“[T]he [Appointments] [C]lause places an affirmative obligation on the President and the Senate to fill the described appointments. Without the implication that this will be done in a reasonable time, this clause loses all effectiveness. Similarly, the Constitution must be upheld and followed in good faith. Quite simply, the Appointments Clause cannot be effective if either the President or the Senate violate the duty to cooperate.”); Dean Martha Minow & (former) Chief Judge Deanell Tacha, Op-Ed, US needs a government of laws, not people, The Boston Globe, Mar. 22, 2016 (“Obama [has a] clear constitutional duty to nominate a successor [to fill the Scalia vacancy] . . . .”), http://tinyurl.com/jpc7tpo; Robin Bradley Kar & Jason Mazzone, Why President Obama Has the Constitutional Power to Appoint—and Not Just Nominate—a Replacement for Justice Scalia 6 (Mar. 21, 2016) (“We conclude that constitutional text, structure and history all cast significant doubt on the constitutional authority of the Senate to refuse to consider any Obama nominee.”—relying primarily on structuralist separation of powers argumentation, i.e., intuition), available at http://ssrn.com/abstract=2752287; Steven J. Harper, “Let the People Speak”?, The Belly of the Beast (Mar. 9, 2016), http://thelawyerbubble.com/2016/03/09/let-the-people-speak/ (“The President has a duty to nominate and the Senate has a responsibility to act on that nomination.”). See generally Douglas W. Kmiec & Elliot Mincberg, The Role of the Senate in Judicial Confirmations, 7 Tex. Rev. L. & Pol. 235, 240 (2003) (Professor Kmiec: “The proposition that judicial nominee disposition was by the full body, not committee, was early confirmed by a Senate resolution that can be found in the Executive Journal of 1789 . . . .”); id. (“Now, this constitutional text is bolstered in a very important way, an unequivocal way, by the Federalist Papers.”).

Now the people who have opined that President and/or Senate have a constitutional duty (per the Appointments Clause) to nominate a successor to AS are distinguished commentators, whose opinions deserve fair consideration. However, there are people who have taken the opposite position. These include, for example, Professors Lawson and Seidman, Adam J. White, a well-published D.C. practitioner, and Daniel Koffsky, a senior Department of Justice attorney. See, e.g., Gary Lawson & Guy Seidman, Downsizing the Right to Petition, 93 Nw. U. L. Rev. 739, 762 n.123 (1999) (“[T]he Appointments Clause is best read as a grant of power rather than an affirmative duty.”); Adam J. White, Toward the Framers’ Understanding of “Advice and Consent”: A Historical and Textual Inquiry, 29 Harv. J.L. & Pub. Pol’y 103, 147 n.235 (2005) (“[T]he President is under no duty to nominate someone to fill a vacant office—despite the Constitution’s instruction that he ‘shall’ so nominate . . . .”); cf., e.g., Appointment of a Senate-Confirmed Nominee, 23 Op. O.L.C. 232, 232, 1999 WL 33495513 (Oct. 12, 1999) (Koffsky, Acting Dep’y Asst. Att’y Gen.) (“The Constitution thus calls for three steps before a presidential appointment is complete: first, the President’s submission of a nomination to the Senate; second, the Senate’s advice and consent; third, the President’s appointment of the officer, evidenced by the signing of the commission. All three of these steps are discretionary.”), http://tinyurl.com/gljnnv8. These people are also distinguished commentators, whose opinions deserve fair consideration.

Here we are faced with what are essentially conflicting intuitions in regard to the original public meaning of an 18th century text. Both sides cannot be correct. What to do? Answer: We should look for evidence, and fortunately, some good evidence is at hand.

Some many years ago, a judge on some multi-member appellate court—albeit, not a particularly well-known judge—albeit, not a particularly well-known court—once addressed this precise issue, albeit in mere dicta.

This is what he wrote:

The second section of the second article of the Constitution declares,

The President shall nominate, and, by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, and all other officers of the United States, whose appointments are not otherwise provided for.

The third section declares, that “He shall commission all the officers of the United States.”

An act of Congress directs the Secretary of State to keep the seal of the United States, to make out and record, and affix the said seal to all civil commissions to officers of the United States to be appointed by the President, by and with the consent of the Senate, or by the President alone; provided that the said seal shall not be affixed to any commission before the same shall have been signed by the President of the United States.

These are the clauses of the Constitution and laws of the United States which affect this part of the case. They seem to contemplate three distinct operations:

1. The nomination. This is the sole act of the President, and is completely voluntary.

2. The appointment. This is also the act of the President, and is also a voluntary act, though it can only be performed by and with the advice and consent of the Senate.

3. The commission. To grant a commission to a person appointed might perhaps be deemed a duty enjoined by the Constitution. “He shall,” says that instrument, “commission all the officers of the United States.”

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 155–56 (1803) (Marshall, C.J., for a unanimous Court[1]). Chief Justice Marshall was unsure if the Commissions Clause was permissive or mandatory, but as to nomination and appointment, he was sure: the President’s conduct in regard to these events is characterized as “completely voluntary” and “voluntary,” respectively.

Now it seems to me that Marshall et al. could be right, or Ramsey et al. could be correct, but they cannot both be correct. Either a president’s proffering a candidate as a nominee is a “completely voluntary” act (per Marshall) or it is a “duty” (per Ramsey). Unless Ramsey can proffer some evidence contradicting Marshall, i.e., evidence other than his own and his contemporaries’ linguistic intuitions, I suggest the 1803 Court has liquidated all ambiguity in regard to the Appointment Clause’s use of “shall.” If he cannot put any evidence forward, then we should reject his position as “presumptively untenable.” Of course, the evidence he must put forward need not be as good as Marbury, but he needs to put forward some evidence. At the very least, he has a duty of production. Why? Because in an intellectual conflict seeking to resolve the original public meaning of a fairly disputed two-century old linguistic term, where one side has modern linguistic intuitions on its side and the other side has concrete evidence, evidence trumps. Or at least, it ought to.

I also add that if Ramsey’s position were correct, one might expect that someone prior to Marshall might have put forward a position akin to Ramsey’s; likewise, one might expect that someone contemporaneous with Marshall might have criticized Marbury for misconstruing “shall” in the Appointments Clause. Who has ever criticized Marbury on these grounds? Where is that evidence?

Seth

Twitter: https://twitter.com/SethBTillman ( @SethBTillman )

https://twitter.com/SethBTillman/status/713267087666507776

My prior post is [here]: Seth Barrett Tillman, Part I, Does the President Have A Duty To Nominate Supreme Court Candidates? Does the Senate Have A Duty To Consider Nominees?, The New Reform Club (Mar. 18, 2016, 1:33 PM).

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[1] Other members of the Court in 1803 included: William Cushing, William Paterson, Samuel Chase, Bushrod Washington, and Alfred Moore.