The Law: The President “Shall Nominate”: Exclusive or Shared Constitutional Power?

On May 23, 2005, a bipartisan group of fourteen senators (known as the Gang of Fourteen) (1) signed an agreement that ended an escalating battle between the Republican and Democratic parties in the Senate. Still in operation, the compromise ensured the votes of three stalled nominations (2) while preserving the right of all senators to filibuster judicial candidates. (3) The Gang of Fourteen also sought to minimize future conflict by sanctioning filibusters only in "extraordinary circumstances" (U.S. Senate 2005). With the immediate controversy resolved, the Senate proceeded to vote on, and confirm, three of the filibustered nominations (Hulse 2005, A14). Recent debate centering on what type of extraordinary circumstances would trigger a filibuster (Babington 2006, A5) has raised concerns over how the two branches can better work together in the appointment process. The Gang of Fourteen contends that the advice and consent clause is the source of the solution. They say the advice component requires a president to consult with the Senate, which "may well serve to reduce the rancor that unfortunately accompanies the advice and consent process in the Senate" (U.S. Senate 2005). In a previous article, I looked at the requirements of the Senate in taking up-or-down votes on a president's judicial nominees (Sollenberger 2004). Finding no constitutional or historical rational for mandatory votes, I now turn my attention to the period before a nomination is formally submitted to the Senate. This stage, which I call the prenomination process, has been a source of continued friction between the two branches. In recent years, the conflict over filibusters has produced calls for greater congressional involvement in the consideration of appointments. This article looks at how much interaction between the branches is warranted at this stage. It seeks to understand how the prenomination process should and does operate. My intent is to demonstrate that there are theoretical, historical, and institutional justifications for a president consulting members of Congress. It is important to understand that the prenomination process is not, and probably never will be, the subject of litigation and thus can never receive declarative judgment from the courts. This problem reveals the difficulty of trying to interpret this aspect of the advice and consent clause. Unfortunately, much of the general study of the Constitution focuses on case law, particularly Supreme Court opinions, to determine how constitutional clauses function. Many scholars regard the Supreme Court as the determinative and final decision-making authority on constitutional questions. The source of this attitude is the 1803 statement by Chief Justice John Marshall: "It is emphatically the province and duty of the judicial department to say what the law is." (4) This was and still is a faulty point of view. The president and Congress have a substantial impact on how various constitutional provisions are exercised. In fact, when determining the proper practice of making a nomination, the executive and legislative branches have the only say. Interpreting the Advice and Consent Clause As neither the president nor Congress can rely on the Supreme Court to tell them how the prenomination process functions, they must turn to other sources. Looking at the strict letter of the Constitution, there is no clear evidence that the advice and consent clause is meant to include or exclude lawmakers in nomination decisions. Article II, section 2, provides that the president "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." The text clearly points to an executive-centered role in nominating, but does it permit congressional involvement? …