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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: ( @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)

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