Strauss, David A.

Sunstein, Cass Robert

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 On Truisms and Constitutional Obligations: A Response  (Article begins on next page)The Harvard community has made this article openly available.Please share how this access benefits you. Your story matters.Citation David A. Strauss & Cass R. Sunstein, On Truisms andConstitutional Obligations: A Response, 71 Tex. L. Rev. 669(1992).Published Version http://chicagounbound.uchicago.edu/journal_articles/436/Accessed February 16, 2015 1:57:03 PM ESTCitable Link http://nrs.harvard.edu/urn-3:HUL.InstRepos:12942297Terms of Use This article was downloaded from Harvard University's DASHrepository, and is made available under the terms and conditionsapplicable to Other Posted Material, as set forth athttp://nrs.harvard.edu/urn-3:HUL.InstRepos:dash.current.terms-of-use#LAAUniversity of Chicago Law SchoolChicago UnboundJournal Articles Faculty Scholarship1992On Truisms and Constitutional Obligations: AResponseDavid A. StraussCass R. SunsteinFollow this and additional works at:http://chicagounbound.uchicago.edu/journal_articlesPart of theLaw CommonsThis Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in JournalArticles by an authorized administrator of Chicago Unbound. For more information, please contactunbound@law.uchicago.edu.Recommended CitationDavid A. Strauss & Cass R. Sunstein, "On Truisms and Constitutional Obligations: A Response," 71 University of Texas Law Review669 (1992).ResponseOn Truisms  and Constitutional  Obligations:A ResponseDavid A.  Strauss* & Cass R.  Sunstein**In  our  essay  on  the  confirmation  process  of  Supreme  CourtJustices,'  we sought to support four propositions:1.  The current confirmation process is working poorly.22.  In  a  development  that  is  without  precedent  in  our  history,presidents  of a single party made  eleven  consecutive  appointments to theSupreme Court, even though the Senate, except for a brief period of time,was controlled  by  another party.3  This development  threatened  to createa Court that lacks the appropriate range of views on constitutional  issues.43.  The Constitution contemplates an independent role for the Senatein deciding whether  to consent to presidential  nominations  Such a rolewould be especially  desirable under the conditions described  in (2),  evenif  it leads  to  the  rejection  of nominees  because  of their  likely  votingpatterns.4.  The Constitution authorizes the Senate to advise the President onprospective nominees to the Court.6  It would be especially appropriate for*  Harry N.  Wyatt  Professor of Law, the University of Chicago.  A.B.  1973,  Harvard;  B.  Phil.1975, Oxford; J.D.  1978,  Harvard.**  Karl N.  Llewellyn Professor of'urisprudence, Law School and Department of  Political Science,the University of Chicago.  A.B.  1975,  J.D. 1978,  Harvard.1.  David A.  Strauss &  Cass R.  Sunstein,  The  Senate, the  Constitution, and the  ConfirmationProcess, 101  YALE L.J.  1491  (1992).2.  See id. at  1491.3.  See id. at  1503-04.4.  The election of a President and a Senate majority of the same political party in 1992 means thatour arguments are now largely moot-likely to have little practical significance in the immediate future.The distinctive circumstances that justified an active senatorial role no longer exist.  The circumstanceswe describe, however, could recur (as they did after the period 1977-1981, when one party controlledboth the presidency  and the  Senate);  or they  might arise in  a  slightly  different  form  if importantjurisprudential  rifts developed between the Senate and the executive.5.  See Strauss & Sunstein, supra note 1, at 1494.6.  See id. at 1494-95.Texas Law Reviewthe  Senate to  assume  such  a  role,  given our  recent  experience,  both todecrease the level of distraction and  antagonism in the recent nominationproceedings7 and to produce greater quality and diversity on the Court.Professor  McGinnis's  vigorous  response  does  not take issue withproposition  (1),  says  little  about  proposition  (2),'  and  explicitly  agreeswith our reading of the Constitution  in proposition  (3),  which  is the heartof our paper.9  The principal subject of his article is proposition (4).Professor  McGinnis  advances two  principal arguments  against oursuggestion  that  the  Senate  should  advise  the  President  on  prospectivenominees  to the Court.  The first is that the Constitution contemplates  no"formal  prenomination  advisory  role" for the Senate'  but "reserves  theact  of  nomination  exclusively  to  the  President.""  If we  understandProfessor McGinnis correctly,  we have no disagreement with him on thispoint;  indeed,  he  is obviously right.  We do  disagree,  however,  that hisdemonstration of this point undermines  our position.Professor  McGinnis's  second argument  is that the President has aconstitutional  obligation not to appoint anyone out of a desire to compro-mise  with  the  Senate  on  legal  philosophy.12  The President,  ProfessorMcGinnis says, violates his oath of office if he appoints someone who doesnot share his  approach  to constitutional  interpretation. 3  Here we reallydo have a disagreement; we think Professor McGinnis's argument is unper-suasive on this score.I.  A  "Formal"  Role?Professor McGinnis argues extensively that the President alone hasthe power to nominate candidates for the Supreme Court.  He marshals  a7.  Our essay referred particularly to the emphasis placed on the nominee's telegenic qualities, todistortions of Judge Robert Bork's record, to the effects of television on some Senators' behavior,  andto the uninformative generalities offered by  some recent nominees.  See id. at 1518-19,  1518 n.107,1519 n.110.8.  Professor McGinnis  briefly  argues that  intellectual diversity  is  an unnecessary  goal for theSupreme  Court,  on  the  grounds  that  liberal  law  professors  and  others  will  offer  criticism  ofconservative outcomes,  and that persuasion of one justice by another is rare.  See John 0.  McGinnis,The  President, the Senate, the  Constitution, and the Confirmation Process:  A  Reply  to  ProfessorsStrauss and Sunstein, 71 TEX.  L.  REV.  633,  650-52 (1993).  These premises may be right,  but wethink that there remains a  need for diversity within the Court.  It is important for Justices of varyingviews to confront  one another  in  conference,  outside of conference,  and during  the circulation  ofopinions.  This is a valuable internal check on both arguments and outcomes.9.  See id. at 653  ("The  Senate is 'independent'  in that it may legitimately  refuse to confirm  anominee who, in the opinion of the majority of the Senate, holds fundamentally incorrect principles ofconstitutional interpretation.").10.  Id. at 642;  see also id. at 638-46.11.  Id.  at 645.12.  See id. at 635.13.  See id.[Vol.  71:6691993]  Response:  Truisms  and Constitutional Obligations  671great  deal  of evidence  to support this claim,  and he criticizes  us for notdiscussing some of this evidence.But of course we do not deny that the power to nominate rests withthe  President  alone.  We  do  not  suggest  that the  nomination power  isshared.  If the President makes a nomination without seeking or acceptingadvice from the Senate, the nomination is no less effective.  If this is whatProfessor  McGinnis  is  saying  when  he  insists  that  the  Senate  has  no"constitutional prenomination advisory role,""'  then we have no disagree-ment with him; nothing we said suggests a Senate role in this sense.Professor McGinnis,  for his  part,  does not insist on the hermeticseparation  of the Senate  and the President;  on the contrary,  he seems  toacknowledge  that the President may consult with the Senate on nominees"out  of  comity  or  political  prudence.""5  Our  disagreement  mighttherefore  appear  to  be  quite  narrow:  he  admits  that  consultation  issometimes  a good idea,  and we do not claim that consultation is formallynecessary  to make  a nomination effective.We suspect, however, that our disagreement is more significant thanthat.  Especially in conditions of prolonged divided government,  we thinkthat consultation between the President and the Senate is more than just amatter  of  "political  prudence."  If  the  Senate  has,  and  exercises,  anindependent role in considering  nominees-and Professor  McGinnis  saysthat it is entitled to do so-consultation is a necessary means of establishinga workable  and  sensible appointments  process.  Whether that makes  it a"constitutional  obligation"'S-the  issue  to  which  Professor  McGinnisattaches such significance-seems  to us practically an unimportant questionand  theoretically  one  of doubtful  coherence.  Under  the conditions  wediscuss in our essay, conditions of long-term divided government  in whichone party's Presidents have made an extraordinary number of consecutiveappointments,  the President and  the  Senate are not properly  dischargingtheir roles in the constitutional  scheme unless  they consult about nomina-tions.Suppose, for example, that a President repeatedly vetoed bills passedby  Congress  without  letting  Congress  know  ahead  of  time  what  hisobjection was, even though the objection might have been met easily by anamendment.  Congress would then have to repass the bill, guessing (on thebasis of the  President's veto  message) precisely what  amendment  wouldsatisfy  the  President.  As  a  result,  the  legislative  process  would  bewastefully delayed and disrupted.  Surely we would say that the President,by failing to make his objections known while the bill was pending, did not14.  Id. at 638.15.  Id. at 646.16.  Id.Texas Law Reviewcarry out his duty to make the Constitution a workable scheme.  Whetherthis is characterized  as a duty of "comity,"  or instead as a "constitutionalobligation,"  does  not really  matter.  It would be the President's respon-sibility-notwithstanding the undoubted fact that the Constitution does notsay that the President may play a role in congressional  consideration of abill,  and even though the President certainly has no formal  role before abill is presented for his signature.Our suggestion is that consultation with  the Senate about SupremeCourt appointments is,  under conditions of prolonged divided government,a similar sort of responsibility.  Professor McGinnis's extended discussionof the history  of the Appointments  Clause  is essentially  irrelevant to thisrelatively  modest  claim.'7  Professor  McGinnis  finds  a  number  ofinstances  in which people  emphasized  the President's power to nominatecandidates of his own choosing; but nothing in our argument is inconsistentwith that truism."Professor McGinnis has  also not persuaded  us that the language ofthe  Appointments  Clause  argues  against  our  view.  That  language  isunavoidably  awkward,  at least to the modem ear:  "[The  President]  shallnominate,  and  by  and  with the Advice  and  Consent  of the Senate,  shallappoint...  Judges of the supreme Court....  "19  Professor McGinnis'sexplanation is that "[t]he  Senate's consent is advisory because confirmationdoes not bind the President to commission ...  the confirmed nominee."'This  is a plausible  explanation of the wording of the text,  but it has theserious  drawback  of  making  the  key  word-"Advice"-redundant:  the"advisory"  character  of  the  Senate's  consent  is  fully  secured  by  theseparation of nomination and  appointment.Our interpretation is,  of course, also not free of textual difficulties.We do note, however, that Professor McGinnis's own misunderstanding ofour position suggests an explanation of why "advice"  is not directly linkedwith "nominate"  in the Clause:  if the Clause specified that the President,"with the Advice of the Senate, shall nominate,"  then questions might arise17.  We  are grateful  to Professor McGinnis for correcting some errors in identifying the first namesof certain delegates.  Id. at 639 n.29.  We do not believe, however, that these errors  are relevant tothe correctness of the propositions discussed in our essay.18. Thus  Professor McGinnis's  detailed  discussion  of related  issues  in  The  Federalist  Papersconfirms proposition (3)  and does not speak to proposition (4).  Professor McGinnis is concerned aboutour omission of George Mason's reference to the President's  exclusive right of nomination.  See id.at 644-46.  But we do not at all deny what Mason was asserting-that the President alone has the powerto make an effective nomination-and we continue to be unable to see how Mason's statement of thattruism bears on the question of prenomination advice.  For the same reason, none of the quotations inProfessor McGinnis's response suggests that Congress is disabled from offering prenomination advice.Advice is only that;  it does not bind  anyone, much  less force the President to nominate  someone ofwhom he disapproves.19.  U.S.  CONSr.  art. II,  § 2.20.  McGinnis, supra note 8,  at 639.672 [Vol.  71:6691993]  Response:  Truisms and  Constitutional Obligations  673about whether  a nomination was  effective (even  if it was  consented to bythe Senate)  if the President  did not obtain  the proper  form  of "advice"before making it.  Further, our position does have the virtue of not makingthe term "Advice"  superfluous.In any event,  the relevant provisions of the text are too ambiguousto be decisive on the question of the Senate's role.  That issue will have tobe resolved on the basis of the kinds of considerations of history, structure,and practicality that we discussed in our earlier essay.Finally, Professor McGinnis suggests that we are mistaken in sayingthat  a  nominee  bears  the  burden  of proof  because,  in  his  view,  theAppointments  Clause makes  it difficult  for the Senate to reject a judicialnominee  without  "compelling  reasons."21  This  is  so,  according  toProfessor McGinnis,  because  a "political burden"  is placed  on the Senatewhenever  it publicly  rejects  a presidential  choice.'  We agree with bothof these points.  But again they are,  we think,  essentially irrelevant to theSenate's  assessment  of its  constitutional  responsibilities.  In  general,  itseems  quite  sensible  to  say  that  a nominee  should  be  rejected  only for"special  and  strong  reasons."'  But  under  the  extremely  unusual  cir-cumstances  of the recent  past,'  we believe that such reasons  exist if thenominee  is unable  to  show that he would add  quality  and  an  appropriatedegree of intellectual diversity to the Supreme Court.  No one has a rightto serve on the Court.  In the face of eleven consecutive  appointments byRepublican  Presidents,  a  Senate  controlled  by  the  Democrats  would  beperfectly entitled to insist on its constitutional prerogatives-and  this is soeven if the Senate may face political barriers  to this course of action,  andeven if the President insists  on continuing to choose people of whom theSenate disapproves.II.  An Obligation to Ignore the Senate?If Professor McGinnis's  first claim, that the President alone  makesnominations to the Supreme Court,  is a truism that we do not and need notdispute,  his  second  claim  is  more  nearly  the  opposite:  it seems  to  usimplausible.  This  is  the  claim  that  because  the  President  swears  to"preserve,  protect and  defend the Constitution of the United States"'  heis  "under  a  constitutional  obligation to  nominate  an  individual  who  hebelieves will  interpret the Constitution in  a manner that generally  accords21.  Id. at 655.22.  Id. at 653.23.  THE FE!RAUiST  No. 76, at 457 (Alexander Hamilton) (Clinton Rossiter ed.,  1961).24.  See supra text accompanying note 3.25.  U.S.  CONST.  art. I1,  §  1, cl.  8.Texas Law Reviewwith his view  of its lawful  construction."'  Accordingly,  a President whoaccepted  our  arguments  "and  agreed  with  the  Senate  in  advance  tonominate a jurist whose constitutional views differed substantially from hisown would abrogate this most solemn oath."'This is a striking claim.  It would mean,  to give just one example,that unless President Hoover "substantially"  agreed with the principles ofearly  Legal  Realism,  he violated his  oath  of  office  when he  nominatedBenjamin Cardozo to the Supreme Court.  In our view,  Professor McGin-nis's  argument  rests  on  a simple  misunderstanding,  a  form  of categorymistake.  Professor McGinnis's reliance on the President's oath of office?is a  makeweight  argument:  invoking  the oath just raises  the question  ofwhat the Constitution requires.  In order to determine the President's dutyunder the Constitution-in this case, under  the Appointments Clause-onemust  interpret  that Clause,  using  all  appropriate  textual,  historical,  andstructural arguments.Undoubtedly Presidents have certain obligations under the Appoint-ments  Clause.  For example,  a President would surely violate the oath ifhe nominated  a person who was  sworn to subvert the constitutional order.And we do not think that it is unconstitutional for a President to seek,  asrecent Presidents have often sought, to nominate people whose jurispruden-tial or ideological views agree with the President's.But we do not see any basis at all for saying that the AppointmentsClause  makes  it unconstitutional  for  a  President  to  look  past  his  ownjurisprudential  conceptions  and  to  consider  other  factors:  a  nominee'sdistinction; the Court's need for appropriate intellectual  diversity;  and thefact that, on some constitutional matters,  the composition of the Congress,not just that of the executive branch,  reflects the appropriate benchmark forappointments  to  the  Supreme  Court.  Not  only  is  it  constitutionallypermissible for the President to act that way, but sometimes-such as in aperiod  of prolonged  divided  government  when  one  party  has  made  anunusually large number of consecutive appointments-such an approach ismore in keeping with the constitutional scheme.The  contrary  understanding  of the  appointments  process  is,  wethink, responsible for some of the unfortunate aspects of that process as ithas been carried out in recent years.  We think the President and the Senatecan do better.26.  McGinnis, supra  note 8,  at 647.27.  Id.28.  Id.[Vol.  71:669

On Truisms and Constitutional Obligations: A Response

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On Truisms and Constitutional Obligations: A Response

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