Senate: You May Not Consent, but You Must Advise

I have just read a New York Post editorial supporting the Senate leaders’ refusal to consider the nomination of Merrick Garland to the Supreme Court. [You can read the editorial here.] I don’t know anything about the author, Seth Lipsky, (and haven’t bothered to google him), but I know something about The New York Post, so I don’t fully trust the article’s accuracy, and I must wonder what Lipsky means when he claims that Obama “covets” such “kingly powers” as those held by “tyrants like George III.” All the same, I’ll accept the truths of Lipsky’s historical claims—while still offering my rebuttal.

According to Lipsky, Alexander Hamilton would side with Mitch McConnell’s right to refuse even to consider President Obama’s nominee to replace Justice Scalia. Lipsky cites The Federalist Papers and a few other primary documents to support his claim, so his argument can’t be taken lightly. I in fact trust his claim that Hamilton—and no doubt any number of other Founding Fathers—did not want the U.S. President to have a king’s power to determine what man (or woman, though the founders didn’t see her coming) would serve on a court that oversees the constitutionality of our laws. Still, it is important that we all consider evidence that has unfolded since Hamilton shuffled off this mortal coil, no matter what his Broadway popularity may be right now. It is also important, in judging McConnell’s position, that we consider the exact wording of our Constitution (and the grammarian in me enjoys this part).

Lipsky first mounts his argument by reminding us (with ALL CAPS in Hamilton’s original) of the Senate’s power to ADVISE AND CONSENT, thus emphasizing the limits imposed upon a U.S. President relative to those enjoyed by an English king. I think we can all rightly respond to this first point in Lipsky’s delineation of relevant historical points by saying, “Duh. We all know that the Senate has the power to reject a presidential appointee.” Lipsky goes on to explain that “The topic of Federalist 69 is the ‘real character of the executive.’ It makes it clear that in filling the seat once held by Justice Antonin Scalia, President Obama is at the complete mercy of the Senate — and should be.” To this, we can only say, once again, “Of course.” No one denies the right of the Senate to reject an appointee. Those of us in our sixties, and all who study a little history, can remember a variety of presidential nominees who have in fact been rejected. (Bork is my own favorite in that category, though dumping Clarence Thomas would have earned my vote.) In any case, Lipsky has so far scored no points.

He does go on, with some intriguing detail, to contrast Hamilton’s dislike of the New York Governor’s power with the more limited jurisdiction afforded a U.S President. In this discussion, however, he shines no light on our present controversy. The New York Governor apparently had tremendous discretion in making appointments to a variety of state offices, and the nation’s president, it seems, should (and ultimately would) have less power. But come on: We have, after all, accepted the fact that the U.S. Senate may refuse to “consent” to a president’s nominee.


It seems, in fact, that the real question, the one that matters, is whether they can—or should—refuse even to “advise.” On this question, Lipsky writes this:

For today, Hamilton puts paid [sic] to the notion being slyly advanced by President Obama and the Democrats that the Senate has a responsibility to give an up-or-down vote on the nomination of Judge Garland. That is constitutional poppycock.

We are in precisely the circumstances in which Hamilton foresaw that no appointment could be made. The Founders understood that the ability of the states, via the Senate, to check a nomination was one of the Constitution’s attractions.

And why not? They were revolutionary men. They were taking down a monarchy. They did not want to vest a president with kingly powers of appointment. They didn’t require the Senate to hold even so much as an up-or-down-vote.

Primarily, there is the claim that “Obama and the Democrats” (and also, one might note, a majority of the electorate, including Republican voters) are “slyly” advancing the idea that the Senate should at least acknowledge the candidate the president has offered. I have no idea what Lipsky finds “sly” about this. I am confident, though—and this is where our history since Hamilton left this world might matter—that no nominee, including those made in a president’s final term, has ever been completely ignored by the Senate. For Lipsky—or McConnell or any well-established obstructionist in Congress—to toss aside all that historical record and the clear Constitutional interpretation it represents is at best coy and at worst insidiously disingenuous.

Then there is the grammatical point. Lipsky claims that the Framers “didn’t require the Senate to hold even so much as an up-or-down-vote.” (This, his final argument, ignores the immediate question of the Senate Majority’s refusal to consider and thus to advise, but…oh well.) One might sincerely embrace Lipsky’s claim, I think, given a modern reading of the Constitution.  Article Two tells us that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the Supreme Court…” But to support Lipsky’s interpretation, one has to ignore the meaning of “shall.” It is a verb distinct from “will,” in that it emphasizes a requirement. If I, in the 18th century or in legal terms even today, were to say that I “will” make an appointment, I would be announcing my intention to do so. If I were to say that I “shall” make an appointment, I would be accepting an obligation to do so. The verb “shall” makes the point insistent, even obligatory. Other than careful lawyers, few of us still use the verb “shall,” just as few understand the real distinction between the related auxiliary verbs, “should” and “would.” But the framers lived and wrote by such distinctions. Lipsky should tune in.

And besides, “shall’s” sense of obligation is clearly confirmed by the fact that no Senate has refused to consider a presidential appointee. Senators have certainly opposed an appointment. They have rejected appointments. They have insisted that the President offer an alternative. In doing so, they have advised and they have refused to consent. They have thus met their Constitutional obligation. What they “shall” do they have done. If they refuse to advise, they prevent the president from doing what he is obligated to do, for he must not only nominate a justice; he “shall appoint” a justice. By refusing to advise, and to offer, at least in committee, an up or down vote, the Senate leadership is denying the president an opportunity to make another nomination for them to consider. As a result, he cannot, even though he “shall,” make an appointment.

Thus McConnell, Grassley, so many other Republican senators, and Mr. Lipsky are insisting that the Senate can do what they shan’t do. They insist on doing what they should not.

It takes considerable chutzpah for the Republican senators to claim they are acting on principle. After seven full years of obstructionism, commencing with McConnell’s announcement that his first priority was to prevent a second Obama term, this most recent spitting in the president’s face cannot be disguised as an effort to honor the voice of the people (as if that voice was unclear when Obama easily did win reelection). That they ignore the historical record and the obvious original intent of our Constitution’s framers makes their lies especially bald-faced.