"There is always a philosophy for lack of courage."—Albert Camus

Thursday, March 31, 2016

On Ted Cruz's Eligibility for the Presidency

James Bayard, A Brief Exposition of the Constitution of the United States 96 (Philadelphia, Hogan & Thompson 1833) (“It is not necessary that a man should be born in this country, to be ‘a natural born citizen.’ It is only requisite he should be a citizen by birth, and that is the case with all the children of citizens who have ever resided in this country, though born in a foreign country.”).

Senator Bayard’s treatise was not cited in: Professor Mary Brigid McManamon, The Natural Born Citizen Clause as Originally Understood, 64 Catholic University Law Review 317, 318 (2015) (As I researched the [Natural Born Citizen] Clause, it quickly became clear to me that most modern scholars had made virtually no attempt to wrestle with the text of the Constitution and their historical analyses were negligent at best. (footnote omitted)). 


PS: My co-bloggers do good work. So, please have a look around New Reform Club

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

My prior post is [here]: Seth Barrett Tillman, The Two Discourses: How Non-Originalists Popularize Originalism and What that MeansThe New Reform Club (Mar. 28, 2016, 9:22 AM). 

The key reason conservatives care about Supreme Court appointments

Given the current status of the Supreme Court after the passing of Justice Scalia, and the various maneuvers by politicians on both sides of the aisle regarding the appointment of another jurist to the Supreme Court, it might be helpful to look at an older piece by legal scholar Orin Kerr exploring the importance that conservatives and Republicans (not always the same thing) put on Supreme Court appointments. Read his thoughts here. Kerr hits the nail right on the head when he writes:
Let me paint with a very broad brush and offer my best explanation. The primary reason, I think, is the nature of the Supreme Court's docket in the last fifty years. During that period, most high profile Supreme Court constitutional law decisions have considered whether to ban practices embraced by conservatives rather than whether to ban practices embraced by liberals. For conservatives — especially social conservatives, and especially religious conservatives — the question has been whether the courts will allow their views, not whether the courts will mandate them. Think about abortion, school prayer, gay rights, flag burning, the death penalty — you know, the real "hot button" issues. In each of these areas, a victory for the conservative side means that the political process is left unaltered. On the other hand, a victory for the liberal side means that the court intervenes and mandates that the majority preference — the generally conservative view — is out of bounds. That's generally the opposite of the experience for those on the liberal side of the political spectrum over the last few decades. For liberals, the key question usually has been whether the courts will mandate their views, not whether the courts will allow them. On most of the hot button issues, a victory for the liberal side means that liberals are saved the trouble of going through the political process. A loss doesn't mean their view is not permitted, only that the issue is dealt with in the elected branches like most other issues.

Tuesday, March 29, 2016

Jail vs. Execution

The Bernie Sanders crowd is sending around a meme that looks like this:

While it is true that we incarcerate more people than China (2.2 million vs. 1.7 million) while having only one-fourth China's population, the meme fails to account for executions. Let's compare the execution rate for all the countries in the world that still perform executions (three columns on the right) versus the incarceration rate for all the countries in the world that still perform executions (two columns on the left). Both data sets are sorted highest to lowest:

CountryTotal executed(Min) Per MillionJail rateCountry
(2014)[4]People (2014)(inmates per 100,000 pop)
 Equatorial Guinea911.567???? Somalia
 Iran289+3.707???? Palestine
 Saudi Arabia90+2.925698 United States
 North Korea50+2.079600 North Korea
 Iraq61+1.701306 Belarus
 Jordan111.665290 Iran
 Somalia14+1.309269 Taiwan
 Yemen22+0.881229 United Arab Emirates
 China1,000+0.7220 Singapore
 Sudan23+0.593164 China
 Palestine2+0.44161 Saudi Arabia
 Singapore20.366161 Malaysia
 Belarus3+0.317154 Vietnam
 Taiwan50.213150 Jordan
 Afghanistan60.192133 Iraq
 Egypt15+0.173132 Equatorial Guinea
 United States350.1176 Egypt
 United Arab Emirates10.10674 Afghanistan
 Malaysia2+0.06653 Yemen
 Pakistan70.03850 Sudan
 Vietnam3+0.03349 Japan
 Japan30.02443 Pakistan

As can quickly be seen, Equitorial Guinea has the highest execution rate, at 11.567 per million, while the US has the highest incarceration rate, at 698 per 100,000.

But, in terms of execution rates, the US is at a paltry 0.11 persons executed per million, while the Chinese execute seven times as many at 0.7 per million. 

Only Japan and Pakistan have both low incarceration and low execution rates. Most of the remaining countries balance being high on one list with being low on the other list. Equitorial Guinea, for example, has a very high execution rate, but a relatively low incarceration rate. 

So, we could reduce the incarceration rate the same way China does - we could execute many of our criminals. I'm not at all a fan of capital punishment, and the solution seems ridiculous to me. Worse, I somehow suspect that solution will not satisfy Bernie supporters.

If Bernie really wanted to make the United States look bad, he should compare our incarceration and execution rates to that of Pakistan. Pakistan - perceived by most Americans as a backwater, violent Muslim nation - is low on both lists. On the other hand, we don't have Pakistan's mob violence or murder rate. Pakistan's murder rate, for instance, is 7.7 per 100,000, while America's is only 3.3 per 100,000. If we cut out the 6% of  the US population that commit half the murders in America, America's murder rate would be around 1.6, very low indeed.

But, that having been said, the incarceration rate is something to be concerned about. If America is the land of justice, that is, if most American prisoners really belong in prison, then Americans really aren't very nice people. On the other hand, if Americans really are essentially nice people, then we have a serious problem with our justice system. If nothing else, we should contemplate the fact that, when it comes to capital punishment, we are on a rather short list of nations, and most of the other nations on that list are not very nice.

Bernie's meme may be somewhat misleading, but refuting it is not as pleasant as one would hope.

Liberalism's Tire Fire

Americans no longer hold liberalism, if ever they did, as an end in itself. Or as Lawrence says
elaborating on his piece on America's race politics, "American universities no longer defend the life of the mind or the culture, the culture of liberal arts, that is necessary to sustain the American idea." He is being generous: from at least high school, students are trained not to commit such gauche indignities as asking a foreign student about her country "lest they be sent to the 'equality police'" -- i.e., the "multicultural center." John Searle once waxed confident that a "scientists' origins or gender" could not embarrass the scientific method, but failed to anticipate their subjects' origins and gender would be put to that service. Even the rules of debate are debatable:
In the 2013 championship, two men from Emporia State University, Ryan Walsh and Elijah Smith, employed a similar style and became the first African-Americans to win two national debate tournaments. Many of their arguments, based on personal memoir and rap music, completely ignored the stated resolution, and instead asserted that the framework of collegiate debate has historically privileged straight, white, middle-class students.
The diagnosis, that equality taken as ends rather than means yields pernicious results, might have been obvious sooner. Literal equality is, of course, impossible, and so working under a false premise, the American mind could never have been made fully receptive to moral equality. Taking equality as an object rather than a trait denies us a basis to approve or disapprove each other's conduct, for only by assuming our common nature can we treat with one another. Until we stipulate to a shared, equal nature, we might as well take up conversation with a bowl of noodles. Far from embarrassing the principle of equality, different stations and outcomes show us the equality in our humanity, in the things that matter—imagine: John Lennon's six apartments, together with poor saps with no possessions, in a brotherhood of man: it really isn't hard to do. We can sooner appreciate genuine equality by sharing a meal than by sharing a bank account.

As I was saying, we might have seen our troubles coming sooner had we heeded our own wisdom. Consider Kenneth Minogue's famous passage about liberalism's superhuman doggedness:
The story of liberalism, as liberals tell it, is rather like the legend of St. George and the dragon. After many centuries of hopelessness and superstition, St. George, in the guise of Rationality, appeared in the world somewhere about the sixteenth century. The first dragons upon whom he turned his lance were those of despotic kingship and religious intolerance. These battles won, he rested for a time, until such questions as slavery, or prison conditions, or the state of the poor, began to command his attention. During the nineteenth century, his lance was never still, prodding this way and that against the inert scaliness of privilege, vested interest, or patrician insolence. But, unlike St. George, he did not know when to retire. The more he succeeded, the more he became bewitched with the thought of a world free of dragons, and the less capable he became of ever returning to private life. He needed his dragons. He could only live by fighting for causes—the people, the poor, the exploited, the colonially oppressed, the underprivileged and the underdeveloped. As an ageing warrior, he grew breathless in his pursuit of smaller and smaller dragons—for the big dragons were now harder to come by.
But conservatives—those scholars of human nature—ought to have noticed that an ideology cannot "retire." Liberalism is not St. George: it is a fire; and a fire does not retreat—it consumes or dies. The last source of fuel, the Soviet Union, supplied liberalism's economic and philosphic energies with existential purpose. But with the ascent of liberalism's hegemony arose also an academic vacuum into which rushed all manner of vaporous "theory." Into politics rushed a flood of microscopic grievances. Into the arts—those that weren't replaced by television—rushed an ever competing stream of ugliness. All these old tires were tossed onto liberalism's dying flame, filling the once sweet atmosphere with putrid and sickening foulness. 

The only alternative was for liberalism to become what its activists had aligned themselves against: that is, to become conservative; to put away the task of attaining liberalism in favor of curating its reward—of, finally, appreciating it: to search for truth, to create beauty, to defend honor. But if ever America was a nation of appreciators, it shows little appetite today for liberal-appreciation in its leaders. While few presidents have been worthy even to stand in Washington's shadow, today's most saliently-supported (and simultaneously reviled) would-be president is less a Cincinnatus than a Mountain Dew Camacho, whose general approach to truth, beauty, and honor requires a twitter account or unzipping his pants.

Learn to appreciate that, if you can. Or else throw another tire on the barbie.

Trump: Put Up or Shut Up

Trump supporters really have no basis to be concerned about the upcoming Republican convention. If their man is as good as he represents, he can walk in with 100 delegates, but still walk out with the nomination.

Of course, if he walks in with 1200 delegates and does not get the nomination, we know the reason: Trump is not the negotiator he pretends to be. He is a fraud.

So, let's not hear any cries of "theft!" from Trump supporters.
Trump has a chance to put up or shut up.
My bet is he does neither.

Monday, March 28, 2016

The Two Discourses: How Non-Originalists Popularize Originalism and What that Means

Non-originalists communicate in two different discourses.

One discourse is the mode of truth: it is the mode they reserve for their sophisticated clients and legal briefs, for their colleagues and students. In this discourse, non-originalists critique originalism as ...

1.   Wrongheaded or false because the Constitution is not prolix, it is only an outline, and the gaps must be filled in by each generation;

2.    Wrongheaded because the Framers’ and Ratifiers’ intent is not discoverable;

3.  Wrongheaded because different Framers’ and Ratifiers’ intent, although discoverable, was not unified;

4.  Wrongheaded because original public meaning is not (now) discoverable (e.g., the Constitution is too old);

5.  Wrongheaded because during the framing era and during ratification there were a multiplicity of original public meanings;

6.  Wrongheaded because judicial rulings and precedent are the superior means through which to determine the meaning of the Constitution;

7.  Wrongheaded because judges, academic lawyers, and lawyers are not good historians;

8.  Wrongheaded because the Framing-era and ratification lacked democratic bona fidés by modern standards;

9.  Wrongheaded because we should not be ruled by the moral norms or the dead hand of the past; and,

10.Wrongheaded because originalism gets the wrong (e.g., conservative or libertarian) results.

The problem is that non-originalists have an entirely different discourse, a second discourse, when they communicate with the public. When non-originalists communicate with the public ... non-originalists transform themselves and their discourse into naked, unabashed originalism. It is really quite astounding.

For example, several days ago, more than 350 academics (in law and other fields) signed a letter calling for Senate hearings on the Merrick Garland nomination. My understanding is that this letter was circulated by the über-liberal Alliance for Justice. What did the letter say?

The Senate must not defeat the intention of the Framers by failing to perform its constitutional duty.

Letter from Professor William Andreen et al. to Majority Leader Mitch McConnell et al., Re: President Obama’s Nomination of Judge Merrick Garland (Mar. 7, 2016) (emphasis added). Read the list of those who signed—are any of them originalists, much less originalists of the original intent variety? Perhaps somewhere in that list of 350 academics, there might be a couple. But are not the vast majority garden-variety non-originalists? Why did these people sign this letter? Could not the signatories have crafted a letter for the Senate and for the public explaining their position: that Judge Merrick Garland deserves a Senate hearing, and also support their conclusion via a mode of constitutional interpretation that they (i.e., the signatories) actually believe? Do any of these people teach their students that constitutional meaning, obligation, and duty are determined by the intent! of the Framers!? (Most originalists stopped teaching this discourse a generation ago: they (i.e., the signatories) upgraded from original intent to original public meaning.)

Here is one example. Dean Chemerinsky signed the Alliance for Justice letter. But on another occasion, Chemerinsky wrote:

But I must admit, in all honesty, that I believe one could find just as much evidence and just as many quotations from the Framers for each of the [competing theories of the First Amendment]. This is why I believe that we cannot resolve modern constitutional issues by looking back at history . . . .

Perhaps Chemerinsky believes the Framers’ intent is discoverable in regard to Senate advice and consent, although not in regard to the First Amendment. That’s a possibility—a way to reconcile his two positions.

There is a second possibility. The alternative view is that Chemerinsky signed the letter because he agrees with the result argued for, and because he understands that non-originalist discourse is not favored by the American public he is hoping to convince. In other words, Chemerinsky and his colleagues are unwilling to make the effort to explain to the public that a better mode of constitutional discourse is possible; indeed, the 350+ signatories hope to convince the American public via a mode of discourse that they (i.e., the signatories) reject, without even putting the public on notice that they (i.e., the signatories) reject that discourse. No one is stunned by this situation precisely because it is the norm.  

I think it was Justice Kennedy who once said: “Even a dog knows the difference in being stumbled over and being kicked.” If Chemerinsky, a dean at a publicly funded law school, and 349 other academics take this second approach, reserving one mode of discourse for the elect, and another for the public, then the public, particularly tax-paying public, will take the hint.

Is it any wonder that millions vote for Trump?


PS: My co-bloggers do good work. Please have a look around New Reform Club

PPS: The well-informed Michael Lotus tells me the quotations original source was Holmes, not Kennedy. 

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

My prior post is [here]: Seth Barrett Tillman, Letter to The Boston Globe’s Letters Editor: Responding to Dean Martha Minow (Harvard) and Dean Deanell Tacha (Pepperdine), The New Reform Club (Mar. 25, 2016, 6:26 AM).

Saturday, March 26, 2016

A view from the UK on America’s concern with “White Privilege”

I often hear Americans say that someone has to “check their privilege” or they say you have “White Privilege” as if the term requires no explanation for it is self-explanatory. When they do try to explain it, it is without any irony and in complete ignorance of Rudyard Kipling. He spoke of the White Man’s burden, the original “White Privilege” except Kipling meant racism, imperialism, and colonialism to improve the world. My fellow White Americans, mainly liberal, would be aghast at such a reference, they would shrink from wanting to identify themselves with such a figure, idea, or image. Yet, that is *exactly* what they have done by their belief that as White Americans they continue to possess a privilege that needs to be shed or if it cannot be shed, they must use it to bring justice to America. In their behaviour I am reminded of James Baldwin’s prophetic words in The Fire Next Time:

There appears to be a vast amount of confusion on this point, but I do not know many Negroes who are eager to be “accepted" by white people, still less to be loved by them; they, the blacks, simply don’t wish to be beaten over the head by the whites every instant of our brief passage on this planet. White people in this country will have quite enough to do in learning how to accept and love themselves and each other, and when they have achieved this—which will not be tomorrow and may very well be never—the Negro problem will no longer exist, for it will no longer be needed. (p.21)

At that basic level, the term White Privilege insults Americans, especially Black Americans, as it suggests there is yet another thing other citizens have to wait for White Americans to do for them. From the perspective in the UK, where I live, the focus on privilege, white or otherwise, seems misguided. To know privilege they need to come to the United Kingdom.

I am a commoner in the UK, privilege is reserved to the Crown.
I am a White American who lives in the North East of England. The area where I live is 96% white. I have no privileges based on my race, I am simply one of the many whites. As an American I have even less privileges for I have no status beyond what the law allows me. As an American, I cannot vote but I pay taxes.

In the UK, though, privilege is more than an idea or a convenient explanatory trope[1], it exists in law and practice: The Royal family and those with royal blood have privileges set in law. By right and law, the Queen is my superior. She is the source of law and therefore exempt from nearly all the laws. That is privilege. The Royal Household is also exempt from many laws. That is privilege. The Queen and the Royal Household have the privilege to withhold assent to any law. That is power, that is privilege. They do not have to check it. They own it. As a White American, I am a commoner. In that status I have a kind of equality. I am equal to other commoners in our relation to the Queen. I have no privilege based on my race, my blood, or my nationality. I am the Queen’s inferior and she is my superior through privilege granted by nature and nature’s God.

In the United States we are equal before the law.
By law, no American can claim superiority over me without my consent. By law, I cannot claim superiority over anyone without their consent. No American is privileged by the law over anyone else even the President of the United States must bow before the law. As Barbara Jordan explained her idea of democracy, it was that as she would not be a slave neither would she be a master. Anything that differs from this is not democracy.

Now I began this speech by commenting to you on the uniqueness of a Barbara Jordan making a keynote address. Well I am going to close my speech by quoting a Republican President and I ask you that as you listen to these words of Abraham Lincoln, relate them to the concept of a national community in which every last one of us participates:

    "As I would not be a slave, so I would not be a master." This -- This -- "This expresses my idea of Democracy. Whatever differs from this, to the extent of the difference, is no Democracy."[2]

White Americans who fret about their privilege want to assert their superiority, their privilege, so they can enjoy the ritual of giving it away as if it goes away simply because they “check it at the door”. The problem is that those same Americans, who create this image of White Privilege, take it back up once they leave the room as they do not want to live as equals. They want to live with the inequality, their White Privilege, their White Man’s burden, so their life has meaning. They tell themselves they will use their privilege for good. 

Is White Privilege a necessary variation of the Black Lives Matter theme?
Such a shallow, sad place America is becoming, as Americans flee from justice based on equality of right, which is the true equality. The American idea is based on, born, with the idea of equality. Yet, it is an equality that requires equal civil rights, the public rights, that all share by consent to the laws, which is justice. Americans appear to flee this equality for it would require they accept who they are, their self-government, and live justly, by recognizing and accepting their equality with their fellow black citizens. Instead they retreat into a faux equality as they perform the personally satisfying, yet politically meaningless, if not insulting, ritual of “checking their privilege”, as if by their personal declaration they have ended their personal inequality.

The privilege theorists who talk of white privilege or white fragility appear to believe that by making everyone “check their privilege” they will create a just society free of any contradictions. They want a society ruled by a democratic tyranny where people will be forced to behave equally, think equally, and check their privilege equally for everyone must be judged publicly on the colour of the skin rather than the content of their character as expressed in their public behavior.

I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.[3]

If you are white, you have a privilege that must be checked, which is a sort of reversed Black Lives Matter, in which if you are black, you have no privilege so you must wait for others to check theirs. Instead of living their life justly so that colour of skin does not matter, that is without regard to “white privilege”, the white privilege theorists distort themselves, and the community True privilege, the one granted by nature and nature’s God or by force and fraud, would never be surrender or checked, which is why American fought a civil war to settle that question once and for all, for all Americans. No Black man or woman needs a White Person to check their privilege to make them feel better or to have equality.

There's no white man going to tell me anything about my rights. Brothers and sisters, always remember, if it doesn't take senators and congressmen and presidential proclamations to give freedom to the white man, it is not necessary for legislation or proclamation or Supreme Court decisions to give freedom to the black man. You let that white man know, if this is a country of freedom, let it be a country of freedom; and if it's not a country of freedom, change it.[4]

In the United States black men or women are not habituated by custom, practice, and the law to obedience or deference to the “white privilege”. Through the United States constitution and the Civil Rights Act, they can defend their equality if challenged in the public domain. By contrast, the UK is based on inequality of privilege in which the populace is habituated by custom, practice, and the law to deference and obedience to the Crown and the Queen.[5]

The Queen suffers no remorse for her privilege which is true privilege
Unlike Americans who struggle with living with equality, the Queen experiences no remorse or concern for her privilege. She knows it is a fact of nature that she is superior and endowed with certain rights and *privileges* open to no one else. By contrast, the Americans do not even understand that their ability to speak of White Privilege, the very idea of White Privilege, only comes about because of the American founding, the revolution, that enshrined the self-evident proposition that all men are created equal into a government, which rejected the idea of privilege. It is only on the basis of that American idea, the idea of America, with its belief in the equality of consent that we can criticize the idea of privilege.

When White Americans talk of their privilege, they do a double disservice, they denigrate the American idea by their insistence on their privilege, which they keep wanting to remove but seemingly cannot find a way to remove it as they do not want to embrace the one thing that renders it meaningless-equality as expressed in the American founding. And, they force Black Americans to endure White Americans “checking their privilege” so they can meet as equals.

Perhaps the best way to move forward is to return to the ideals of the American founding and live according to the truths enshrined in the Declaration of Independence. However, that may be too revolutionary of idea or it is simply too late for America?

[1] Consider the work by Robin DiAngelo, "White Fragility", International Journal of Critical Pedagogy, Vol 3 (3) (2011) pp 54-70  http://libjournal.uncg.edu/ijcp/article/viewFile/249/116   in which Whites are simultaneously the dominant race, itself a form of racism, but surprisingly, incomprehensibly, unable to be dominant for they suffer from a lack of “psychosocial stamina that racial insulation inculcates. I call this lack of racial stamina “White Fragility”.” Thus, Whites are both dominant and fragile. p.56 It is almost as if DiAngelo cannot find enough White Supremacists as Whites simply do not see themselves as racists so do not engage in the analysis. She seems wistful that she cannot find White Supremacists with the racial stamina to discuss and defend their white supremacy. Perhaps, the real reason for the lack of “racial stamina” is that White Americans do not see themselves as superior and see themselves as equal to blacks. However, even the concept of being white is not even the colour of skin, as DiAngelo states being white is simply a social process “white and Whiteness ...describe social process.”  p.56

The deeper understanding of Whiteness studies is as follows:
“Whiteness..signf[ies] a set of locations that are historically, socially, politically and culturally produced, and which are intrinsically linked to dynamic relations of domination. Whiteness is thus conceptualized as a constellation of processes and practices rather than as a discrete entity (i.e. skin color alone). Whiteness is dynamic, relationship, and operating at all times and on myriad levels. These processes and practices include basic rights, values, beliefs, perspectives and experiences purported to be commonly shared by all but which are actually only consistently afforded to white people. Whiteness studies begin with the premise that racism and white privilege exist in both traditional and modern forms and rather than work to prove its existence, work to reveal it.”

This suggests that the Civil Rights Act of 1964 has been a failure since whites are the only ones who seem to have civil rights. We are confronted with the facts that every year more whites are shot by police than blacks while as a percentage of population, blacks are more likely to be shot. http://www.theguardian.com/us-news/2015/nov/16/the-counted-killed-by-police-1000 This raises the question of why these whites are not afforded the rights they are supposed to be consistently afforded. Are we to believe on this basis that they have been judged by the content of their character, which is why whites are shot, but blacks are shot only because of the color of their skin?  Soon, we enter the Alice in Wonderland world where so that until Whites understand they are White racists they will never develop their racial stamina so that they can be re-educated to understand that they are racists and as soon as they accept that they can begin to be healed. Until then they will remain repressed racists who are to be judged by the colour of their skin and not the content of their character for their skin colour determines their character.

[5] The UK institutions are based on personal loyalty oaths. The Army, MPs, and Police, Courts, all take a personal loyalty oath to the Queen. They do not swear an oath to the people or a constitution.

Friday, March 25, 2016

Letter to The Boston Globe's Letters Editor: Responding to Dean Martha Minow (Harvard) and Dean Deanell Tacha (Pepperdine)

March 25, 2016

The Boston Globe
Letters Editor

RE: Dean Martha Minow (Harvard) and Dean Deanell Tacha   (Pepperdine), US needs a government of laws, not people (March 22, 2016)

Dear Letters Editor,

Deans Minow and Tacha wrote that “President Obama [has a] clear constitutional duty to nominate a successor” to Scalia. This precise issue was addressed by the Supreme Court in Marbury v. Madison. In 1803, Chief Justice Marshall wrote that the President’s nominating a person to an office is “completely voluntary,” not a duty, much less a constitutional duty. In 1999, the United States Department of Justice’s Office of Legal Counsel issued an opinion stating: “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.See Appointment of a Senate-Confirmed Nominee, Vol. 23 Opinions of the Office of Legal Counsel, page 232 (1999) (Koffsky, Acting Deputy Assistant Attorney General). In short, for over two centuries, the received wisdom—based on the highest legal authorities—has been that the President has no duty to nominate anyone to a vacant office, and the Senate has no duty to consider any of the President’s nominees. 

Why Deans Minow and Tacha would assert otherwise is a mystery.


Seth Barrett Tillman
Lecturer, Maynooth University Department of Law
The author is an American national teaching law in Ireland, and a graduate of Harvard Law School (JD 2000)

N/B: Minow & Tachas editorial can be found [here]

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


For a more expansive discussion of these issues, see my prior posts on this subject which can be found: 

[hereSeth Barrett Tillman, 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, The New Reform Club (Mar. 24, 2016, 12:17 PM); 


[hereSeth 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). 

See Richard Samuelson, From Marbury to Garland, The Weekly Standard (Mar. 28, 2016, 2:17 PM)

Thursday, March 24, 2016

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)

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 Depy 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?


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


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).

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