The “Advice” in Advice and Consent

The simmering controversy over Democratic filibusters of President George W. Bush’s nominees to the federal appellate courts continues to push the constitutional envelope. Even among conservatives themselves, there is profound disagreement about whether the filibusters violate separation-of-powers principles. Leaving that weighty issue aside (for today, anyway), now a new question arises: What is meant by the advice part of “advice and consent”?

The impetus for asking is clear enough. The Senate appears to be careening toward High Noon at the OK Corral — a decisive, bloody battle over the filibusters. Parliamentary maneuvering by Democrats has blocked full-Senate consideration of about a quarter of President Bush's nominees to the federal appellate courts. Republicans, frustrated over this tactic, which is both unprecedented (at least as it has been systematically used here) and unapologetically ideological (i.e., not based on claims about competence or character), are seriously mulling a rule change that would end the filibusters and ensure the nominees an up-or-down vote.

The stakes have now been raised. President Bush, equally vexed over his inability, for four years, to move eminently qualified lawyers into open seats on important courts with pressing caseloads, has re-nominated most of the candidates heretofore blocked. For their part, Democrats, for whom the judicial power assumes ever-mounting significance as their fortunes at the ballot box wane, are under enormous pressure from their special interests not to back down.

If Republicans change the rule (and, mind you, it is no sure thing that they have the votes necessary to do so), Democrats promise to shut down all other business in retaliation. All the relevant players know this would be fraught with ruinous potential. In the aftermath, the public could decide to punish either camp in the 2006 midterm elections. Although a mid-90s shutdown proved disastrous for Republicans, that was because they confronted not only a hostile mainstream press but a skillful Democrat in the bully pulpit. Today, on the other hand, the mainstream is shrinking, the media are no longer nearly as monolithically left-leaning, and the dominant figure is a Republican president who just garnered more votes than any candidate in U.S. history. Still, whether Republicans or Democrats felt the sting in the future, the pain for President Bush would be in the here and now. A shutdown would grind his ambitious second-term agenda to a halt during the precious months he has before lame-duck syndrome takes hold.

Given the daunting mutual risks, it is unsurprising to find officials at the center of the impasse groping to avoid a showdown. Senior members of the Senate Judiciary Committee, including Republican Chairman Arlen Specter and Democrat Chuck Schumer, have suggested that one way out would be to pay more attention to (or, as critics might counter, to reinterpret) the constitutional provision calling on the president to obtain the Senate's advice in connection with judicial appointments.

Senator Specter maintains that “[t]he advice clause in the Constitution has been largely ignored[,]” and has even gone so far as to urge the Bush administration to consult with Senate Democrats before nominating any new Supreme Court justices. Similarly, the Washington Post reports that Senator Schumer has proposed the creation of a “small, bipartisan group” of senators that “should meet with the president sometime in the next few weeks and eventually even make joint recommendations to the president of nominees that are highly qualified and could get broad, bipartisan support in the Senate.”

To the extent they may alleviate tensions and foster a more cordial and promising environment, these proposals should not be dismissed out of hand. Naturally, the White House believes it already does plenty of consulting, that its nominees are already subjected to rigorous congressional vetting, and that what it needs is an up-or-down vote on its choices, not help making the choices from people who don't share its predilections about the proper role of the courts. This, however, ain't beanbag, and one has to ask whether more intrusive consultation, however undesirable it may be, is preferable to even less savory alternatives, such as a continuation of the filibusters (quite likely soon extended to the Supreme Court) or a paralyzed Congress.

Nevertheless, whatever President Bush decides to do, he must make clear that any accommodations are in his discretion, not because the appointments clause mandates them. Judiciary Committee members of both parties pay close attention to developments in the law and tend to know the bar and the academy extremely well. Thus, it is conceivable that the administration could learn some valuable information in a consultative process. Democrats, moreover, could find that an openness to dialogue would offer them both more meaningful influence in the matter of appointments and a graceful way of stepping back from the abyss. But such a process should only happen if it is conceded up front that the president would be submitting to it voluntarily, and that he would not be bound to accept, or take any action on, Senate recommendations.

This brings us squarely back to the appointments clause. The comments by Senators Specter and Schumer could be taken as laying the groundwork for a legal claim that the constitution requires the president to consult with the Senate before naming candidates to fill judicial vacancies. Were such a contention made, it would not withstand scrutiny. Reasonable minds can debate whether it would be good politics for the president to negotiate prior to naming candidates for the bench, but as a matter of law the administration would be on solid footing if it declined to do so. The structure of the constitution, the plain language of the appointments clause, and Alexander Hamilton's discussion in The Federalist Papers of the Senate's contemplated advisory role all indicate that the prerogative to nominate is the president's alone.

First, the appointments clause, which includes the nomination power, is located in Article II, the portion of the constitution that defines the executive power. The placement of an enumerated power in the article that sets out a particular branch's authority is highly significant. Recall, for example, that during the Civil War, Chief Justice Roger Taney held that President Lincoln's unilateral suspension of the writ of habeas corpus violated the constitution. The constitution does not say that only congress is authorized to suspend the writ — it is silent on the matter. What Taney found dispositive, however, was that the framers had placed the suspension clause in Article I, which confers the powers of congress. To the contrary, the nomination power is unambiguous — it is not only found in Article II but is expressly vested in the president.

Bringing us to the second and most salient point: the straightforward language itself. The appointments clause (Article II, Section 2, Paragraph 2) states, in pertinent part, that the president “shall nominate, and by and with the advice and consent of the Senate, shall appoint…judges of the Supreme Court and all other officers of the United States” (which includes judges of the lower federal courts). The clause thus explicitly distinguishes between the power to nominate and the power to appoint. Under its plain terms, the president alone nominates; it is only the subsequent, final appointment that is subject to the advice and consent of the senate.

It would have been a very simple matter for the framers to have written that the president “by and with the advice and consent of the senate, shall nominate and appoint” judges. They very pointedly did not do that. The clause contemplates no advisory role for the senate in the nomination process — only in the consideration of already-named nominees.

Nor need we content ourselves with such linguistic deductions about what the framers must have intended. As Mark Levin has recently pointed out in his bestselling book, Men in Black (188-89), Hamilton made it abundantly clear. In Federalist No. 66, he flatly asserted: “It will be the office of the President to nominate, and, with the advice and consent of the senate, to appoint. There will, of course, be no exertion of choice on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves choose — they can only ratify or reject the choice he may have made.” (Emphasis added.)

In Federalist No. 76, moreover, Hamilton offered an extensive explanation of the rationale, precluding any suggestion of a senate role in nominations. The framers believed that reposing this power in the “sole and undivided responsibility of” a single official, the president, would “naturally beget a livelier sense of duty and a more exact regard for reputation” than could be achieved were the decision left to a committee. For them, a committee (such as the one Senator Schumer suggests) would only serve to multiply the number of “personal considerations” (as opposed to considerations of competence and fitness) that might result in poor choices.

Keeping with this theme of minimizing personal considerations, Hamilton also argued that because the power to nominate would be vested in the president alone, and because the senate would be limited to the power to overrule once the nomination was made, senators would realize that all they could achieve by overruling was yet another candidate of the president's unilateral choosing. The idea — which has rich resonance today — was precisely to discourage the unreasonable withholding of consent, since the senators “could not assure themselves,” Hamilton wrote, “that the person they might wish would be brought forward by a second or by any subsequent nomination.”

So, far from suggesting cooperative nominations, the framers concluded that having a joint Senate-president process would be bad policy. Does that mean it would still be bad policy today?

Not necessarily. It is certainly plausible to argue that many of the framers' assumptions no longer obtain. The government, the courts and the nation itself have gotten so much bigger now than they were in the 18th Century that, as a practical matter, the president chooses nominees by committee anyway. Senators, furthermore, have long played a key, if unofficial, role in the president's selection of appointees from their individual states. One need not agree with the notion in order to admit that it is far from outlandish to suggest that presidents might make a habit of seeking the Senate's advice before announcing a nomination — and in a time of extraordinary rancor it might indeed be a viable tonic.

But here is the important point — the one that distinguishes adherents of objective originalism from those who prefer a highly subjective “organic constitution.” Acknowledging that conditions have evolved, that assumptions may have changed as well, and that the president might well decide that conciliatory consultation might be preferable to a stalemate is a far distance from saying that the constitution should be read as if it says and means something drastically different from what it actually says and means.

When it comes to regulating government officials, the constitution generally sets baseline requirements, not ceilings. The fact that the appointments clause does not require the president to consult with the Senate before naming candidates for the bench does not prohibit him from doing so in his discretion. But as far as the constitution is concerned, the Senate's advice is required only after the president has made his nominations.

— Andrew C. McCarthy, who led the 1995 terrorism prosecution against Sheik Omar Abdel Rahman and eleven others, is a senior fellow at the Foundation for the Defense of Democracies.