Describing the Article II, Section 2 appointment process, Justice Antonin Scalia’s famed Freytag v. Commissioner concurrence reads as prescient in the battle to fill his seat:
“A power of appointment lodged in a President surrounded by such structural fortifications could be expected to be exercised independently, and not pursuant to the manipulations of Congress.”
A Scalia-approved analysis of constitutional text and original history proves that the Constitution’s Framers intended only simple-majority confirmation votes.
With a simple-majority vote, Senate Republicans can end the Senate minority’s unprecedented partisan obstruction of the exceptionally well-qualified Neil Gorsuch’s confirmation.
Leader Mitch McConnellAddison (Mitch) Mitchell McConnellBiden says he's open to altering, eliminating filibuster to advance voting rights Pelosi says GOP senators 'voted to aid and abet' voter suppression for blocking revised elections bill Manchin insists he hasn't threatened to leave Democrats MORE’s (R-Ky.) choice is a constitutional, indeed an originalist one — it is not “going nuclear.”
1787 Framers Intended Simple-Majority Senate Confirmation Votes
Constitutional Convention delegates went to 1787 Philadelphia to create a national government that would actually work. The Republic’s first constitution, the Articles of Confederation, which vested Congress with all appointment responsibility, failed quite badly.
The Framers thus remedied the Articles of Confederation’s chief defect by formally separating executive authority from Congress. In both form and function, the Constitution was drafted to provide effective and practical governance through a strong Executive with a strong appointment choice prerogative.
The Senate’s job is to render a timely advisory consent to the president’s choice by a confirmation vote – “ratify or reject.”
The super-majority vote design of the Articles of Confederation failed also badly. Thus the 1787 Convention explicitly rejected general super-majority vote requirements.
The Framers allowed only five explicit exceptions to Senate simple-majority rule: 1. expelling members; 2. ratifying treaties, 3. overriding presidential vetoes; 4. convicting on impeachments, and 5. proposing constitutional amendments.
Madison and Hamilton Advocate for Ratification Based on Constitution’s Simple-Majority Vote Requirement
James Madison, in Federalist 58, argued that a super-majority vote requirement reverses “the fundamental principle of government” by placing the minority in control of the majority: “It would be no longer the majority that would rule: the power would be transferred to the minority.” And Madison wisely warned that such a minority would come to abuse the power to “extort unreasonable indulgences.”
And, in Federalist 22, Alexander Hamilton described how a super-majority requirement distorts governance as “the smaller number will overrule that of the greater.”
Hamilton explained how a super-majority vote requirement “[in] its real operation,” has potential to be used by the few to “embarrass the administration . . . destroy the energy of government,” and hold governance hostage to the “caprice or artifices of an insignificant, turbulent, or corrupt junto.”
Hamilton was unreserved in his warning about a Senate minority faction causing “tedious delays; continual negotiation and intrigue; contemptible compromises of the public good.”
As if prescient of the unprecedented obstruction of our present “uncompromising” partisan age, Hamilton warned that super-majority vote requirements can ultimately lead to anarchy:
“[I]n such a system, it is even happy when such compromises can take place: for upon some occasions things will not admit of accommodation; and then the measures of government must be injuriously suspended, or fatally defeated. It is often, by the impracticability of obtaining the concurrence of the necessary number of votes, kept in a state of inaction. Its situation must always savor of weakness, sometimes border upon anarchy.”
Justice Scalia’s 1991 Originalist View of Appointments
A contemporary originalist view of federal appointments is found in Justice Antonin Scalia’s 1991 Freytag v. Commissioner concurrence:
“The Framers’ experience with post-revolutionary self-government had taught them that combining the power to create offices with the power to appoint officers was a recipe for legislative corruption. ... Even if legislators could not appoint themselves, they would be inclined to appoint their friends and supporters.”
Scalia explained that the “Appointments Clause is, intentionally and self-evidently, a limitation on Congress.”
Scalia quotes both James Wilson and James Madison for “good and sufficient reasons” that “the federal appointment power was removed from Congress.”
Scalia described how the Constitution’s plan “depositing appointment power in a fortified President” works to “[ensure] an actual exclusion of the legislature from appointment.”
Academic Support of a Senate Simple-Majority Votes
A rich legal and policy literature has developed to expose the Senate filibuster’s tainted history and the unconstitutional operation of the cloture rule.
Consider Professor Edward Corwin’s decades-old condemnation of the Senate filibuster which “extorts special favors for its authors.” Professor Corwin lamented the “indefensible concessions which a small block of so-called ‘Silver Senators’ have been able to wrest.”
Professor Corwin expressed concern that the obstruction of a Senate minority would come to harm the Senate’s “intended purpose in the constitutional system.” Edward S. Corwin, The President: Office and Powers 348 (1948).
Attorney Edward Bondurant’s 2011 Harvard Journal of Legislation article is perhaps the best contemporary condemnation of the Senate filibuster. He briefs six different ways that filibusters are unconstitutional. A hat tip to Brian Lamb’s C-SPAN’s archive for a video of Bondurant making his case.
Disagreement Becomes Obstruction Becomes Nullification
The destructive cycle of confirmation obstruction and subsequent partisan payback has intensified with each of the past four presidencies. Chief Justice John Roberts captured the downward spiral: “Each political party has found it easy to turn on a dime from decrying to defending the blocking of judicial nominations, depending on their changing political fortunes.”
I have argued against Senate confirmation obstruction and for the appointment discretion of each of the past four presidents. I even supported Obama’s 2012 recess appointments with a Supreme Court amicus curiae brief in the NLRB v. Noel Canning adjudication. [And I later explained during an early 2016 10-day Senate recess how Obama could recess appoint Merrick Garland to SCOTUS. Obama declined to do so.]
Shortly after that 2013 Senate vote to eliminate filibusters for lower court and executive-office confirmations, President Obama explained how partisans have come to “obstruct everything, no matter what the merits, just to refight the result of an election.”
So now the Senate must end filibusters for Supreme Court confirmations. Will the legislative filibuster be next?
Victor Williams is a Washington, D.C. attorney and law professor. He leads America First Lawyers Association – www.americafirstlawyers.com
The views expressed by this author are their own and are not the views of The Hill.