From Article II, Section 2 of the U.S. Constitution:
He [the President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
President Donald Trump’s nomination of eminently qualified Neil Gorsuch to the Supreme Court has touched off predictable reactions from Democrats. Many of them are very bitter over the GOP-controlled Senate’s refusal to consider President Obama’s nomination of Merrick Garland to fill the vacancy left by the passing of the great Antonin Scalia. Given the GOP’s refusal to even hold a hearing on Garland’s behalf, Democrats are in no mood to cooperate with Trump’s nominee. Senate Minority Leader Chuck Schumer recently insisted that Democrats will demand a 60-vote minimum to confirm Gorsuch to the High Court—implying, of course, that they will, if necessary, filibuster the nominee.
Democrats argue that the Constitution obligates the Senate to vote for or against a presidential nominee. They insist that a refusal to even consider a nomination is an abdication of their constitutional responsibilities. They argue that the term advice and consent demands action, not inaction. One cannot give advice and one cannot consent without action. And action, in a senatorial sense, includes hearings, debate, and an up or down vote. Inaction, therefore, is a dereliction of duty.
Opinions are varied on the meaning of advice and consent. That is to be expected if we ignore the original understanding of said term. In early America, the meaning was not as questioned as it is today. People argue over modern dictionary definitions and infuse their arguments with what they feel is the proper role of the Senate. The chaos is predictable without objective principles to guide us in understanding the Constitution.
Before directly analyzing Article II, Section 2, it is helpful to briefly explain why textualism and originalism are indispensable guideposts for constitutional interpretation. Law can be extremely complicated, but the following example should be easy to understand. It is an illustration I have often used for the benefit of my students. Imagine a 1790 law which states:
No gay activities shall be permitted during state funerals.
Also imagine a group of people who object to seeing males holding hands and females kissing (as heterosexual couples often do when grieving) during state funerals. They adopt the “evolving standards of decency” and “living law” approach and call for the arrest of homosexuals who publicly display their affection during state funerals. How would a textualist judge decide such a case if homosexuals are fined or arrested for engaging in “gay” activity? Quite easily, of course. The word gay in 1790 meant joyful, happy, carefree. Thus, textualism looks at the words as they were defined when the law was enacted, and originalism looks at how they were understood at the time of adoption. If the evidence clearly shows that the public understood such a law to prohibit celebratory behavior during state funerals, any conviction of homosexuals based on said law would be overturned. To infuse the words of the law with a modern definition (thus, changing the definition) amends the law from the bench (where the term legislating from the bench comes from) and arrogates a power reserved by the People through their elected representatives. One can readily see how textualism is a safeguard against liberal and conservative activisim—whether in the legislature or on the bench. Any philosophy which grants a judge latitude to replace the People’s will with h/er own undermines the rule of law and should never be accepted by a democratic republic.
During the Constitutional Convention of 1787, various modes of appointment were discussed and debated. On July 18, Madison informs us of a proposal by Nathaniel Gorham of Massachusetts:
Mr. Ghorum, wd. prefer an appointment by the 2d. branch to an appointmt. by the whole Legislature; but he thought even that branch too numerous, and too little personally responsible, to ensure a good choice. He suggested that the Judges be appointed by the Execuve. with the advice & consent of the 2d. branch, in the mode prescribed by the constitution of Masts. This mode had been long practised in that country, & was found to answer perfectly well.
Note that Gorham suggested the advice and consent model of the Massachusetts constitution. Following more debate, votes were held on two proposals. The first vote defeated the proposal to vest judicial appointments solely in the Executive. The second proposal (Gorham’s) was tied. Upon these results, more discussion ensued, and Madison then proposed an Executive appointment which could be defeated by 2/3 of the Senate. In other words, a presidential appointment would stand unless the Senate voted by a 2/3 majority to reject the same. Concerns were raised that this gave too much power to the president and demanded too much of the Senate. Madison then agreed to drop the 2/3 proposal to a simple majority. Madison’s proposal thus required a down vote by the Senate to reject a nomination. Madison’s proposal meant, of course, that Senate inaction would result in the nominee assuming the position in question. A public, negative vote would have been the only manner in which the Senate could reject a presidential nominee. This, too, was defeated by the convention. It cannot be overstressed that Madison’s requirement for a Senate vote (thus limiting the Senate’s power to a discretionary veto) was defeated by the convention.
Finally, the convention initially agreed to accept judicial appointments by the Senate, but then reconsidered Gorham’s proposal. After some debate, Executive nomination with the Senate’s advice and consent was approved. The delegates accepted the final version on September 17.
Recall that Gorham’s proposal relied upon the Massachusetts model which “had been long practised in the country, & was found to answer perfectly well.” An examination of Massachusetts’ executive appointments shows that while the vast majority of appointments were approved by their mandated advising Council, rejections were never formally announced. In other words, when they rejected a nominee, they did nothing. The Massachusetts constitution required the advice and consent of the Council for judicial appointment, officers, and treasury expenditures. While affirmations were publicly recorded, rejections were not. As a result of investigating the records of Massachusetts, Adam White concluded:
The Massachusetts process of council advice and consent for executive nominations served as Nathaniel Gorham’s model in proposing an advice and consent model of judicial appointment in the Federal Constitutional Convention. As seen in the colonial history of the council, and in the Essex controversy, the people of Massachusetts deemed a strong Council essential to the effective restraint of the Governor; it was a core feature of the revised Massachusetts Constitution of 1780. It was originally envisioned as a majoritarian body, per the text of its constitutional mandates. But as seen in the investigation of its records, its advice appears to have been limited to formal pronouncements on matters of spending and appointment, not including any general advice it offered the Governor in their near‐daily meetings. It appears that its formal advice and “consent” did not include rejections of nomination or of other gubernatorial requests; rather, it was limited to the affirmative, explicit approval of matters before it. The Massachusetts Council never evidenced obedience to any obligation to actively and publicly reject those nominees who failed to receive its consent, at least not in any way that comported with the explicit mandate of the then‐new state constitution, in the brief interim between ratification of the state constitution of 1780 and the Federal Constitutional Convention of 1787. This stands as strong evidence against the suggestion that the Federal Constitution’s advice and consent provision includes an implicit obligation that the Senate actively and publicly reject those nominations that fail to secure the Senate’s consent.
Given that the convention rejected the proposal to require a formal vote by the Senate in order to defeat a presidential nominee, and given that the advice and consent model proposed by Gorham was based on the model used by Massachusetts, the assertion that the Senate is obligated to issue and up or down vote on judicial nominations does not conform to the original understanding of that term. Indeed, said term was similarly used in England:
This interpretation of advice and consent also reflects the traditional use of the phrase in England, which, long before 1787, customarily noted that the King’s law was enacted “by and with the advice and consent of the lords spiritual and temporal and commons in parliament assembled” (or a functionally equivalent reference to “advice and consent”) in pronouncements of law that received the concurrence of Parliament. “Advice and consent” did not refer to parliamentary rejection of the King’s proposed course of action, but only its endorsement of that proposal. In this respect, “advice” was not a synonym for “opinion,” but rather, it was a synonym for “approval.” [ibid]
White’s entire paper is recommended reading for a fuller description of the history behind the adoption of advice and consent into our Constitution.
In reply to the Democrats’ insistence that advice and consent obligates action (yea or nay), consider a requirement from the Boy Scouts that parental consent is required for Johnny Smith to join his troop on the next campout. It should be manifest that if Johnny’s parents do nothing, the Scouts will have no choice but to prohibit Johnny from participating. In other words, their express consent (normally in writing) is required for Johnny to participate. The refusal of the parents to give written affirmation is not a dereliction of their duty as parents; it is their right. The power of nomination rests in the president. The power of appointment rests in the Senate. It can only appoint by an affirmative vote. If it does nothing, the nominee cannot serve.
In sum, the Senate’s role in the confirmation process is not limited to a discretionary veto. Recall that a bill becomes law unless the president vetoes it. Such an approach for the Senate was explicitly rejected by the Constitutional Convention. Given the Massachusetts model’s use of the term advice and consent and given England’s precedent, the Senate is not obligated to act on a president’s nominee. It may vote to approve, vote to reject, or do nothing. This approach, of course, conforms with originalism. It excises the subjective wrangling over what that term means and it eliminates an appeal to how we feel the Senate should act. Consequently, complaints by Democrats that the GOP was derelict in its constitutional duty are without warrant. And their reliance on that false claim in opposing Gorsuch is manifestly ignorant or disingenuous.
