Mensch tracht, un Gott lacht

Friday, March 18, 2016

Part I: Does the President Have A Duty To Nominate Supreme Court Candidates? Does the Senate Have A Duty To Consider Nominees?

There is some recent discussion on The Originalism Blog on the purported duty of a President to nominate persons to Supreme Court vacancies, and on the purported duty of the Senate to consider nominees in its (the Senate’s) advice and consent role.

Much of this discussion focuses on the Constitution’s use of “shall,” and that discussion further assumes that “shall” is mandatory. The widespread view in modern statutory interpretation that “shall” expresses a mandatory command does not easily cohere with 18th century constitutional drafting and 18th century American-English usage. Some years ago my co-author & I wrote a four-page paper on this subject. See Nora Rotter Tillman & Seth Barrett Tillman, A Fragment on Shall and May, 50 American Journal of Legal History 453 (2010) (peer reviewed). 

As my co-author & I explain, “shall” sometimes indicates mere futurity. It is easy to forget that the Constitution was drafted in 1787. Ratification took place in 1787 and 1788: all prior to the first meeting of the First Congress (post-Articles of Confederation) in 1789. “Shall” in this 1787 document, in some clauses, merely meant who or which body would act in the future or be empowered to act in the future once the new Constitution (our Constitution) and government went into operation. The idea that “shall” was meant as a command in every clause where it was used is under theorized. See, e.g., U.S. Const. art. II, § 1, cl. 6 (“[T]he Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.” (emphasis added)). The first two shalls may be mandatory, but I think it is odd to suggest that the third shall is mandatory. 

I also see some discussion suggesting that the Senate has told the President not to nominate anyone or that the Senate has told the President to send over no nominees, and further suggesting that in doing so the Senate has defaulted on its duty. I know of no proceedings by the Senate—as a collective body—taking any such course of action. I know of no order, resolution, or vote (per Article I, Section 7, Clause 3) committing the Senate to rejecting the President’s current or future Supreme Court nominees. The position of individual senators (even if in the leadership) makes for good politics, but it does not answer the question of whether the Senate has acted in good faith and in compliance with the law of the Constitution, its norms, aspirational purposes, and historical conventions. 

Finally, I make this last point with some trepidation. It will strike some as ad hominem. But it is not meant to be so. It is put forward only to clarify the issues. The position that a President has a duty to put forward a Supreme Court nominee is narrowly elitist and overtly judicial-centric. Nothing distinguishes the President in his role here in regard to nominating Supreme Court nominees from (1) his role in regard to nominating other judicial nominees and (2) his coordinate role in regard to nominating persons for any and every other office (however humble) within the President’s orbit. If the President fails to nominate a person to one of these less prominent offices who would say that the President failed in his constitutional duty? I think few, and perhaps no commentators would make such an argument. And if you will not make that argument for each and every one of the less prominent positions subject to presidential nomination, I think there is no good reasoned basis for making it for Supreme Court vacancies—except that the great & good all think the Supreme Court was, is, and must be the center of our attention and political life. In other words, this Supreme Court-centered view is exactly the position that AS fought tooth-and-nail. He was right to do so. 


Twitter: ( @SethBTillman )

My prior post is [here]. Seth Barrett Tillman, Cologne, Rape, and “Purim & My Bangladeshi Friend,” The New Reform Club (Feb. 23, 2016, 3:05 AM).

See Jonathan H. Adler, The Senate Has No Constitutional Obligation to Consider Nominees, 24(1) George Mason L. Rev. 15, 19 nn.22–23, 32 n.85 (2016) (citing Tillman & Tillman’s Fragment on Shall and May and two NRC posts),,

See Ed Whelan, Another Feeble Argument About Senate Confirmation Role, National Review Online Bench Memos (Nov. 3, 2016, 2:07 PM), (citing Tillman’s NRC post). 


bflat879 said...

With the liberal view of the Constitution being that it is an evolving document which they have to ability to interpret in a different way than how it was written, it becomes extremely important that the public have a say in the nominee, even if THAT'S not written into the Constitution.

Liberals have their panties in a wad because they see the opportunity to move the court to a liberal court and they're being thwarted by the same political party who they've done everything in their power to limit the amount of judges Republican Presidents have put on the court, including those courts that lead to the Supreme Court.

2 words for liberals, Miguel Estrada.

Fred Beloit said...

Hang in there, Republicans. Don't let the Leftist media scare you. Remember how they tried everything possible to give Dems the House and Senate in 2014? They failed and the voters who supported you won. They will fail again if you stand together.

Brent said...

As I see it, under Article II, the President has an unlimited power to nominate individuals to fill vacancies. As part of a coequal branch of government, the Senate has an unlimited power to deny consent if it wishes.

Checks and balances.

Joseph W. said...

For better or worse, a refusal to consider judicial nominees has been a political tool for some time now -- as in the early aughts, when Democrats were filibustering George W. Bush's judicial nominees until he dealt with them on other issues. I heard a lot of complaining about the tactic (from the other side back then, natch) but not a claim that an up-or-down vote was constitutionally required, let alone enforceable.

'course since the Constitution doesn't require nine justices anyway, it's especially hard to see how there'd be a duty to nominate or confirm a ninth one. Mr. Tillman has it right on this one.

KJ said...

Advise and consent indeed. Senate Republicans: we advise you not to bother