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Tuesday, March 01, 2016
Read the text, Senator
If you want to score debater's points by claiming your fidelity to the text as against your interlocutor's atextualism, you need to make sure you actually get the text right.
Case in point: Republican Sen.. Charles Grassley's SCOTUSBlog commentary, responding to President Obama's own SCOTUSBlog commentary about his power and obligation to "appoint" a successor to Justice Scalia. Not so, Grassley insists--"The President has authority to nominate a candidate for the Supreme Court, and the Senate has the authority to consent or withhold consent." Obama thus is under a "fundamental misunderstanding" of the constitutional text, which shows that any justice he will put forward will similarly disregard the text.
Except: "he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court." So the President does not only nominate; he appoints, although with advice and consent of the Senate.
If Grassley's point is that both branches are involved in choosing a Supreme Court Justice, he is absolutely correct. And the Senate is perfectly within its constitutional power (if not necessarily its obligation to govern responsibly and effectively) to withhold that consent. But this is entirely a political calculation--the expectation that he (and the rest of the Senate GOP) will be ideologically opposed to any Obama Justice. Grassley was trying to avoid the politics by grounding his argument in constitutional text, as well as being a bit pedantic in the process. But if so, you cannot get the text wrong.
Posted by Howard Wasserman on March 1, 2016 at 02:00 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink
Comments
I appreciate the clarification John, and am open to the argument, but multiple judges over history were recess appointed so repeatedly it was not understood that way. And, I don't think that was merely simply ignoring the text since it might be assumed to be an allowable exception. As it was over time.
Posted by: Joe | Mar 2, 2016 3:39:57 PM
Joe - What I meant earlier is that there's a tension between the recess appointments clause (which allows the President to give a short-term commission to officials he appoints during a recess of the Senate) and Article III, which says that federal judges hold office "in good behavior" (which, of course, has been interpreted to mean "for life").
It's not logically possible to be a temporary appointee AND have life tenure. Which is why I think the recess appointments clause, properly understood, doesn't apply to judges.
Posted by: John | Mar 2, 2016 11:51:50 AM
Except Obama was not trying to make a textual point; he was using generic, if imprecise, language to describe the process. Grassley was trying to play textual gotcha to make a point--"see, Obama has no respect for constitutional text (and neither would his nominee) because Obama used "appoint" to describe what the President does and that reflects a "fundamental misunderstanding" of the text." But if you call someone out for being atextual by saying "appoint" and the text says "appoint," you kind of messed up.
Posted by: Howard Wasserman | Mar 2, 2016 10:26:56 AM
I'm not sure that there's too much to choose between when two politicians rhetorically emphasize their power and de-emphasizing the other branch's power.
But of the two, isn't Grassley's statement a bit more complete? He wrote: "The Constitution grants the authority to nominate and approve Supreme Court Justices to coequal branches of the federal government. The President has authority to nominate a candidate for the Supreme Court, and the Senate has the authority to consent or withhold consent."
Obama's piece never mentions "advice" or "consent." Here's his only mention of the Senate: "And as Senators prepare to fulfill their constitutional responsibility to consider the person I appoint, I hope they’ll move quickly to debate and then confirm this nominee so that the Court can continue to serve the American people at full strength." "Consider" isn't in the relevant text, is it?
Posted by: [email protected] | Mar 2, 2016 10:07:56 AM
Still not sure I understand the arguments above. I agree with the comment that the President nominates and appoints, and the consent comes in between. But where in Grassley's statement does he suggest otherwise? His statement quoted above reflects the President's power to nominate, and then States the Senate has power to give consent. Am I missing something?
Posted by: TJM | Mar 1, 2016 7:51:25 PM
"at best dubiously constitutional"
I can see the argument there, but to use the Noel Canning rule, it is a historical loser / not directly barred by the text.
Think the third comment is right -- go out of your way to play "gotcha," you better do it right. Plus, think Obama is using a bit of spin. Think you can challenge him on the phrasing but don't think Grassley's effort does much there.
Posted by: Joe | Mar 1, 2016 6:25:03 PM
Perhaps not. But Obama is not trying to play textual gotcha. If you do that, you better be right.
Posted by: Howard Wasserman | Mar 1, 2016 6:11:49 PM
Obama did mention the Senate, actually: "And as Senators prepare to fulfill their constitutional responsibility to consider the person I appoint, I hope they’ll move quickly to debate and then confirm this nominee so that the Court can continue to serve the American people at full strength."
Granted, any constitutional pedant (and I'm certainly one of those) will point out that Obama is arguably backwards on the text in the above-quoted passage (either that or he's being overly sanguine about his chances of getting a "yes" vote). He cannot "appoint" a person before the Senate considers and consents to that person (except in the case of a recess appointment, which in my view is at best dubiously constitutional as regards federal judges), but he's still made clear that he understands the Senate is involved in the process.
Still, Grassley is just wrong.
The Constitution says that the president makes the nomination AND the appointment. The Senate's role comes in between.
Posted by: John | Mar 1, 2016 5:54:04 PM
Sen. Grassley's post reads better in juxtaposition with the President's. Throughout almost all of his post, President Obama refers to the "person I appoint" with no mention of the Senate at all. Then, in the last sentence, he mentions the Senate's "responsibility to consider the person I appoint" -- almost as if the appointment preceded the consideration. "Advice and consent" are never mentioned, which is the Senator's point: the President has accurately quoted a snippet of the Constitution while silently and misleadingly omitting reference to the Senate's role. Is Sen. Grassley really disregarding the text any more than President Obama?
Posted by: RQA | Mar 1, 2016 2:34:40 PM
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