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Monday, December 08, 2008

Has Senator Leahy Forgotten Something Rather Important?

Okay -- I get that we're all in a big hurry to get the new Administration underway, but this is getting ridiculous!

Courtesy of CQ Politics (my emphasis added):

Senate Judiciary chairman Patrick J Leahy told reporters today that he intends to hold a confirmation hearing for Eric H. Holder Jr. to be Attorney General during the week of Jan. 5.

Well, riddle me this: Exactly who will have nominated Holder to be the AG by the week of January 5?  Unless there has been a back-room deal pursuant to which President Bush submits the names of President-Elect Obama's nominees (and wouldn't that be a story!), there will literally be no nomination on which the Senate Judiciary Committee can hold a hearing until President (as opposed to President-Elect) Obama submits names to the Senate, so, not before 12:01 p.m. on January 20...

Put another way, isn't it true that President-Elect Obama has no more constitutional power to nominate someone to a Senate-confirmable job than I do?

Posted by Steve Vladeck on December 8, 2008 at 05:16 PM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink


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Obama is the President-elect. The procedures for confirmation hearings are not delineated in the Constitution. Leahy did not indicate whether the hearings would be binding. We don't have a moment to spare in getting the new administration up and running.

Posted by: Joe Miller | Dec 10, 2008 10:19:59 PM

IIRC, the Senate as a whole votes on the nomination, and I'm guessing that would have to happen after the inauguration, but I don't see why the Committee hearings and vote couldn't precede that.

Posted by: alkali | Dec 9, 2008 3:32:22 PM

Perhaps the question is whether the Judiciary Committee can act sua sponte, or whether they must wait until the nomination is referred to the committee by the full Senate under Senate Rule 31(1)? Or whether Rule 26(1) (authorizing committees to "to hold such hearings, to sit and act at such times and places ... to require ... the attendance of such witnesses and the production of such correspondence, books, papers, and documents, to take such testimony and to make such expenditures out of the contingent fund of the Senate as may be authorized by resolutions of the Senate" (emphasis added)) is jurisdiction-conferring, or if it merely confirms and bolsters an existing power.

Can we infer anything about this question from the fact that nominations lapse not only at the end of a Congress, but at the end of a session, or with any adjournment of the Senate lasting for more than thirty days, Riddick, 946?

Posted by: Simon Dodd | Dec 9, 2008 9:08:29 AM

Per Christian, the test case would be where prior to the inauguration and installation of new Senators there is one committee regime, all to be replaced, and where the result of a filibuster would not render the point moot. The only case I can think of where this would come up is if opposition party or party moderates assume the incoming committee will be so ideologically out-of-bounds so as to bottle up an appointment that would otherwise pass on the floor. In a case like this, there are other procedures for loosing the blockage.

In any case, they can hold hearings on future nominees until they are blue in the face. Once the the nomination actually occurs, there is a formal process.

Posted by: AndyK | Dec 8, 2008 11:42:35 PM

but there's no formal action the Senate (or the Senate Judiciary Committee) can take until the nominee is formally nominated.

Why not? This is all the Constitution says: "[The President] ... shall nominate, and by and with the advice and consent of the Senate, shall appoint ... all other officers of the United States...." There's nothing saying the Senate cannot advise and consent before the nomination. There may be a Senate rule about that, but that would be up to the Senate to determine.

Posted by: Bruce Boyden | Dec 8, 2008 8:19:00 PM

Hmm, but I'd also assume that as a matter of constitutional law, the committee can do whatever it wants, including approving ineffective appointments, referring the matter to the whole Senate. I'd also assume that the Senate could confirm actual appointees without any committee actions at all. In other words, all that ought to matter, again from a constitutional power perspective, is that the Senate as a whole has confirmed a valid appointee- meaning, in this case, that the Senate not confirm an appointment until it receives the appointment from President, rather than President-elect, Obama. Whatever arrangements the Senate makes with respect to committees passing on appointees, valid or prospective (and thus invalid) would be a matter of Senate rules, not constitutional power, and I just don't know what those rules are. In other words, any constraints on the committee would be merely prudential - at least I would think they ought to be.

Posted by: Christian Turner | Dec 8, 2008 6:18:15 PM

The early hearings are the norm. The Achcroft hearings were held before the inauguration

Posted by: John Tanner | Dec 8, 2008 5:58:48 PM

Christian is surely right that the Senate can hold hearings on whatever it wants, but there's no formal action the Senate (or the Senate Judiciary Committee) can take until the nominee is formally nominated. So while Leahy is free to hold hearings, it's not like the Committee can vote to approve the nomination until after Holder is actually nominated in the first place.

Posted by: Steve Vladeck | Dec 8, 2008 5:36:43 PM

Never having been involved in Senate procedures, I'm going out on a limb here. But can't the Senate Judiciary committee hold hearings about pretty much whatever it wants? So, sure, while Obama may have no more formal power than the rest of us in this regard, the judiciary committee need not care about such things. Of course, no vote by the Senate, as a whole, to confirm an Obama appointee would be effective before the inauguration, ie before Obama has the power to appoint. But I don't think that could stop a committee from holding hearings, right? Does anyone with inside-the-beltway experience know better?

Posted by: Christian Turner | Dec 8, 2008 5:33:09 PM

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