Tillman Responding to Washington Post Op-Ed: Gregory L. Diskant--Obama can appoint Merrick Garland to the Supreme Court if the Senate does nothing

April 10, 2016

The Washington Post

Opinion Editorial Editor

RE:   Response to Gregory L. Diskant’s Obama can appoint Merrick Garland to the Supreme Court if the Senate does nothing (April 8, 2016, 9:01PM) 

Dear Editor,

Gregory L. Diskant’s theory—that, after 90 days, in the absence of concrete Senate action, the President can act alone and appoint Judge Garland to the Supreme Court—does not pass constitutional muster.

First, “Diskant’s” theory is—when all is said and done—Professor Matthew C. Stephenson’s theory. In 2013, in Yale Law Journal, Professor Stephenson, of Harvard Law School, argued that Senate inaction worked a waiver or implied consent subject to a 90-day rule of thumb.[1] But Stephenson squarely stated that his theory, to the extent it worked at all, only worked for Executive Branch positions, and not in regard to judicial appointments, including Supreme Court appointments.

The second reason “Diskant’s” position fails is that it relies on an analogy to waiver[2] in the context of litigation adjudicating individual rights. But neither Senate action nor inaction implicates any individual rights. Therefore the analogy fails. If the House passes a bill, even a money bill which must originate in the House, and the Senate wholly fails to consider the bill, who in his right mind believes the House and/or President can construe the House bill as a proper federal statute, and then proceed to implement the bill as if the bill had also passed the Senate? To put it another way, generally, constitutional procedures restricting public bodies cannot be waived precisely because the interests they protect do not belong to the institution, but exist to protect the public. In short, Senate inaction cannot waive actual advice and consent.

The third reason “Diskant’s” position fails is because it was rejected by Marbury v Madison and all subsequent legal authority (at least, until Professor Stephenson’s article). In Marbury, Chief Justice Marshall, writing for a unanimous Supreme Court in 1803, characterized the nomination and appointment process as “completely voluntary” and “voluntary,”[3] respectively. Likewise, in 1999, the Clinton Justice Department’s Office of Legal Counsel issued a memorandum which characterized every step of the nomination and appointments process as “discretionary.” This memo expressly included Senate advice and consent.[4] If something is “voluntary” or “discretionary,” it means you don’t have to do it. After more than 200 years of unbroken practice requiring actual affirmative Senate consent before the President may make a lifetime appointment to the federal judiciary, it is now too late in the day to play let’s pretend, and to impose an arbitrary and fixed 90-day time limit on Senate action. Such time limits have no support in the Constitution’s text, and, if for no other reason, that should end the legal discussion. Of course, if the American People believe the President or Senate have erred politically, then that wrong can be corrected at the next regular election—and only in that manner.

Finally, the same 1869 federal statute which mandated a 9-member Supreme Court has also established a quorum of only 6 members.[5] Thus, there is no rush to fill any Supreme Court vacancy, in spite of the fact that some future cases might end up tied 4-to-4. Given that Congress has set a quorum of 6 members, it stands to reason that Congress expected some Justices: to recuse themselves in specific cases; to take temporary leave to fulfil other government duties;[6] to recuperate for a reasonable time if ill; and to die. The Court, as a functioning institution, goes on, at least, as long as it has 6 members, and surely Congress must have understood that a 6 or 8 member Court can deadlock.[7] Indeed, historically, there have been lengthy periods of time where the Court, by statute, was expressly composed of an even number of members. For example, when Chief Justice John Marshall was appointed to the Supreme Court, its size was set to 6 members by statute. To the extent worries about deadlock are a consideration, it is a political consideration for the American People, not a legal consideration, constitutional or otherwise.

Sincerely,


Seth Barrett Tillman

Lecturer, Maynooth University Department of Law

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

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

Other responses to Diskant can be found at [Professor Jonathan Adler], [Professor Michael Ramsey], [Professor Ilya Somin], and [Ed Whelan at National Review], which in turn cite other commentary.

My prior post is [here]: Seth Barrett Tillman, A Letter from the Grave: Scalia to Tillman, September 13, 2010, The New Reform Club (Apr. 13, 2016, 5:24 AM) 

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[1] See Matthew C. Stephenson, Can the President Appoint Principal Executive Officers Without a Senate Confirmation Vote?, 122 Yale L.J. 940, 973 (2013) (“I would not extend this proposal to judges; for judicial appointments, it would make more sense to read ‘Advice and Consent’ as requiring an affirmative confirmation vote.” (emphasis added)); id. at 941–43 (explaining that theory of implied consent does not apply to appointments to the federal judiciary); id. at 971 n.98 (citing Seth Barrett Tillman’s scholarship). 

[2] See generally Letter from Seth Barrett Tillman to Professor Anonymous, The Quorum Clause (July 2, 2014), available at http://ssrn.com/abstract=2462012 (discussing which constitutional rules and standards are subject to waiver).

[3] See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 155 (1803) (Marshall, C.J.). 

[4] See Appointment of a Senate-Confirmed Nominee, Vol. 23 Opinion Office of Legal Counsel, page 232 (1999) (Koffsky, Acting Deputy Assistant Attorney General). 

[5] See Act to Amend the Judicial System of the United States, ch. 22, § 1, 16 Stat. 44, 44 (1869), codified at 28 U.S. Code § 1. 

[6] Consider Justice Jackson was on leave from the (9-member) Supreme Court, when he appeared as Chief U.S. prosecutor at the Nuremberg trials. Was deadlock a consideration during his absence? Likewise, consider that President Washington appointed Chief Justice John Jay envoy to Great Britain. Jay accepted the diplomatic post, but he did not resign from the Supreme Court until after he negotiated the so-called Jay Treaty (signed Nov. 1794; ratified 1795). See Notice of John Jay's Powers (1794) [here]; Jay Treaty (signed 1794) [here]. 

[7] Cf. Michael Ramsey, Robin Bradley Kar & Jason Mazzone: Why President Obama Has the Constitutional Power to Appoint--and Not Just Nominate--a Replacement for Justice Scalia, The Originalism Blog (Mar. 30, 2016, 6:45 AM) (“Actually, while the Constitution creates the Supreme Court, Congress creates the ninth seat on the Court. Just as Congress could constitutionally abolish the lower federal courts, it could constitutionally abolish the ninth seat on the Court.”).