Senate Majority Leader McConnell Disbarment Proceedings

Announcement: Senator McConnell Disbarment Proceedings

Bret Sablosky, President Powerful Constitutional Rights Political Action Committee, will announce that complaint of serious attorney misconduct has been filed against the majority leader of the U.S. Senate, Mitch McConnell, with The Kentucky State Bar in Frankfort, KY, with relief being McConnell disbarment.The complaint alleges McConnell failed to support the U.S. Constitution, which is a violation of the oath of attorney. McConnell did this by denying hearings and a full yay or nay Senate vote on the Merrick Garland nomination, obstructing an Article II Process to deny President Obama Judicial Appointments Power, and transfer it to his own group. The most relevant federal statutes are criminal, so this will be only the beginning.

#stopkavanaugh and address McConnell’s Crimes

 

                         

Brett Sablosky

Powerful Constitutional Rights Political Action Committee

Draft only- not for public viewing or to be shared other than paper and not after 9/25

brett@powerfulconstitutionalrights.org

 

ACTIVITIES TO REMOVE GORSUCH AND BLOCK KAVANAUGH

            Neil Gorsuch was illegally appointed to the U.S. Supreme Court. Justice Gorsuch is not a tenured U.S. Supreme Court Justice because he was chosen by the legislative branch, the U.S. Senate, rather than the executive branch, the president of the United States. This is a violation of the separation of powers doctrine in the United States Constitution. The violation of the separation of powers is so serious as render the the confirmation vote on Justice Gorsuch void, and a null approval by the U.S. Senate. The United States Senate is not allowed to nominate judges of their own choice and prevent a sitting president from nominating a Justice to fill a vacancy on the U.S. Supreme Court. The U.S. Constitution clearly states in Article 2  Section 2  Clause 2  that the President shall nominate and by and with the consent of the Senate, the President shall appoint judges of the Supreme Court.  The language clearly states that the sitting president serving in office when the U.S. Supreme Court vacancy occurs shall in “shall”  language, which is mandatory language, appoint, by and with the advice and consent of the Senate.  When Senator Mitch McConnell and Senator Chuck Grassley stated to the public and the media, that they would not have hearings, and that they would not have a yea or nay vote of approval or disapproval on Merrick Garland, or on any other U.S. Supreme Court nominee, nominated by President Barack Obama, they were acting illegally, civilly, in violation of the above provision of the United States Constitution, which clearly states that it is the President, who is the only official, who can choose a potential U.S. Supreme Court Justice, by nominating that person and with Senate approval that is called appointment by the President.  In the 2016 nomination event, that person was Judge Merrick Garland.

 

            The refusal of Sen. Chuck Grassley to have Judiciary Committee hearings on the nomination of Merrick Garland, as announced and ordered by President Barack Obama, violates the literal, explicit commands of the U.S. Constitution in shall language, that ‘shall’ is mandatory upon the president and is mandatory upon the Judiciary Committee of the U.S. Senate, and “shall” is mandatory upon the majority leader, of the majority party, of the U.S. Senate, who was Senator Mitch McConnell Republican of Kentucky, as well as upon the entire U.S. Senate through McConnell.  The goal of Powerful Constitutional Rights Political Committee is to convince Democratic Senators, who were serving in the U.S. Senate in year 2016, who wanted to vote on the Merrick Garland nomination, to file a lawsuit in the United States District Court for the District of Columbia, to sue to ask the United States District Court, to order the removal of Justice Neil Gorsuch from the United States Supreme Court, on the basis that Justice Gorsuch was chosen by U.S. Senators Mitch McConnell and Senator Chuck Grassley, and the Republican members only of the Senate Judiciary Committee who met secretly, and that Justice Gorsuch, was puppet nominated by Donald Trump. President Trump merely acted as a puppet under the control of Senators Mitch McConnell and Senator Chuck Grassley. The case will have to be appealed to the United States Circuit Court of Appeal for the District of Columbia Circuit. On the United States Circuit Court of Appeal for the District of Columbia Circuit, the Democrats hold 8 Judgeships and the Republicans hold 6 judgeships. On an en banc panel the Democrats outnumber the Republicans 8 to 6. However, Merrick Garland might recuse himself and that would give a 7 Democrat Judges and 6 Republican Judges en banc panel.   The question in this political issue case, is a question of whether a Senate majority party, or a group of Senators in majority of control of Senate confirmation processes by their numbers of their partisan group, in the U.S. Senate, can disobey, contravene, and violate the governing processes, which are as a mechanism explicitly commanded, in the shall language in the United States Constitution, explicitly, that is, with regards to the powers of the President, and the explicitly described procedures, to advise and consent to a judicial nomination.

 

            The question at hand is greater than just the Merrick Garland nomination of President Barack Obama.  The question is do the Republicans or any majority party in the U.S. Senate, have the right to refuse to have  hearings and refuse to have an approval vote on nominations, for any U.S. Supreme Court nominee, by any sitting President. Then the case goes on to the United States Supreme Court, on request for certiorari. Justice Gorsuch will have to recuse himself, since he cannot rule on the legality of the questionable, suspicious, circumstances that caused him to be elevated to the U.S. Supreme Court. That leaves 8 Justices to hear the case. If the court ties in a 4-4 vote, then the final ruling of the United States Court of Appeal for the District of Columbia Circuit stands, as if that ruling were a ruling of the United States Supreme Court, under the rules of the United States Supreme Court. Whatever the ruling of the Circuit Court of Appeal for the District of Columbia Circuit, that ruling will prevail in the case of a 4-4 tie on the United States Supreme Court. 

 

            The idea of our Committee is that the removal of Gorsuch will create a vacancy that will last until after the 2018 Senate elections are completed. If our Democrat Senators suing get their way, the Merrick Garland nomination will be resurrected on the basis of a U.S. Supreme Court, or U.S. Circuit Court of Appeal for the District of Columbia, order based on the equity powers of the court and the law powers of the federal courts to decide political issue cases where there is a dispute between the branches of the federal government, in this case between the both the Executive and the Legislative and the intrabranch [within the branch] dispute between the Republican Senators led by Sen. Mitch McConnell and Senator Chuck Grassley and the minority Democrats led by Senator Chuck Schumer of New York.  Either the Garland nomination will be reactivated or another nominee who may even be chosen by  President Obama who was on Obama’s list for the U.S. Supreme Court, will be chosen based on a remedy ordered by the U.S. Supreme Court or the U.S. Circuit Court of Appeals for the District of Columbia Circuit. At that point, what the Democrats can do depends on how many votes they have in the U.S. Senate and how many votes the Republicans have in the U.S. Senate. What the Democrats can do after the Gorsuch case is resolved by the U.S. Supreme Court is dependent on what decision is written by the U.S. Supreme Court or if there is a tie vote on the U.S. Supreme Court 4-4, then what the decision is will be the decision of the United States Court of Appeals for the District of Columbia Circuit.

Mitch McConnell and President Obama on Constitutional Appointment duties.

Chart of US Federal vacancies

<iframe width=”560″ height=”315″ src=”https://www.youtube.com/embed/qCRkQka9Fj0″ frameborder=”0″ allow=”autoplay; encrypted-media” allowfullscreen></iframe>

Joe Biden set Constitutional Duty interpretation for Supreme Court Appointements with some off hand remarks? I don’t remember Majority leaders or any other name for the scheduler of votes in the Constitution. So I don’t know why I hear the name of this small state Senator of no particular great works.

A record Obstructionist, with filibuster record, judges blocked, Supreme Court blockages. I don’t know why he thinks he can just not schedule a vote and then blow up the filibuster for Gorsuch. The 79 Judgeships this man held up until he could get Republican picks must be answered for and the violation of the Civil rights of the Senate, the President and the independent Judiciary. A mandate to object to judicial pick abuses by the Declaration of Independence itself, the founding document of the United States of America.

This is a clearly un Constitutional power grab, done for corrupt purposes, as a conspiracy in which they decided the Senate business without the Democratic members. Same talking points they got their story together. Text book conspiracy to control the President’s appointments to the Supreme Court until he liked the Presidents picks. Not the Senate, by vote. Mitch McConnell the Senate Majority leader a position of no Constitutional distinction. A Senator who’s job is to write votes on to the schedule.

Democratic Senators- Sue McConnell for Obstruction, and get Kavanaugh postponement

Mitch Mcconnell, obstructionist

Case for Senate suing McConnell, getting an injunction and relief for the deliberate sabotage of a sitting US President and government business

We believe that the Senate Judiciary specifically and any member of the US Senate could have standing in a case regarding the 2016 Obstruction of Justice regarding the Garland nomination as well as the pattern of a record 79 filibusters of federal judges.  Not only was this an obstruction of the legal proceedings mandated by the Constitution and the Judiciary act of 1789- it was literally an obstruction of the entire Justice system, writ large.  The harm- to the judiciary itself, yet and still, there are 90 federal court  vacancies, which means cases take longer, innocent people in jail longer, more cases that aren’t being completed or even taken up…. so McConnell and Co could gain a political advantage that violates separation of powers.

While the Senate, certainly has the power to reject Presidential nominees, neither Mitch McConnell, nor Charles Grassley are the Senate. No vote was had, which is the only way of determining the will of the Senate. Neither have pocket veto power over Presidential nominees- and admitted they were doing so to prevent the President from selecting  a  Supreme Court Justice, as was his power, and his duty.

The clock, which would run out normally, stopped at the same time Mitch McConnell launched his intention to obstruct government hearings and his refusal to acknowledge a twice elected President.

The cloud of illegitimacy that hangs over every 5-4 decision of the term, and the honor, and respectability of the Supreme Court as an institution, and the United States as a whole is tarnished, and disillusions the public of the United States as to the possibility of Justice.

Further, to allow this sort of partisan refusal to do Constitutionally mandated duties because they do not like or are in a different party, rather than for real, material concerns about peoples ability to do their jobs, is a dangerous precedent to set.  It also means that any time the President is of a different party, the Senate can just hold up nominations. If Congress passes a law, the President doesn’t like, he or she could then direct the agencies not to obey.

The proper analogy of tainted processes is to see what happens when police or prosecutors are found to have been planting or withholding evidence- any process associated with that person, is subject to be overturned. Illegal actions cannot be rewarded by influence over the Justice processs

The Constitution does not say, for example, that ALL Electoral College votes need to be counted. Nor does it need to. There are some things which are assumed to be understood. John Marshall (1st Chief Justice of the Supreme Court) talks about this- take the responsibility to establish post offices. The Constitution does not say to deliver mail, nor to enforce mail theft laws. Because some things follow.

Pros of taking Action

There could be upwards of three major benefits-

  1. An injunction on Kavanaugh hearings is a natural ask, which means that Supreme Court picks could be pushed until after November or whenever.
  2. Using a writ of mandamus it is un unprecedented, but possible for the Courts to force the Senate to hold hearings on the Garland nomination. The recourse after that would be tricky, but it is clear the actions were taken with the specific anti democratic, completely corrupt, and illegal intent to prevent an ideological vote shift on the courts.
  3. If it were found to be a major violation, and Judge Gorsuch would need to be removed from the bench and 5-4 decisions of the last term would have to be nullified. It seems extreme, but it is not. The analogy is the police or prosecutors found to be falsifying evidence, and the case exonerations of prior based on their misconduct. This illegal action was done with express intent of shifting the balance of power back to a Conservative base. Corrupt actions cannot be allowed to achieve their result.

 

We feel as though the chances are good- Judges are people, people who like nice, orderly processes- and this directly affects them, case loads are piling up.  Liberal or Conservative- technically speaking this violation is far worse if you honestly claim originalist or constructionist, the latter of which we do.

 

The relevant statutes for cause of action are all criminal- 18 USC 241, 242, and 18 USC 1505, and other related obstruction of justice statutes- so it may need to be a suit in equity to allow the court leeway in crafting  civil relief.

From United States v Classic

Section 19 of the Criminal Code condemns as a criminal offense any conspiracy to injure a citizen in the exercise “of any right or privilege secured to him by the Constitution or laws of the United States.” Section 20 makes it a penal offense for anyone who, acting “under color of any law,” “willfully subjects, or causes to be subjected, any inhabitant of any State . . . to the deprivation of any rights, privileges, and immunities secured and 310*310 protected by the Constitution and laws of the United States.”

 

18 USC 1505 Obstruction of Justice

Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress—

Shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both.

 

  1. In 2016- Mitch McConnell and Charles Grassley violated the Constitution, refusing, on behalf of the entire Senate, to engage in a Constitutionally mandated duty; to provide Advice and Consent to President Obama’s Supreme Court pick. 2 men vetoed the President of the United States, and blocked proceedings in a manner that has never before occurred in the 200+ year history of Supreme Court nominations. The Senate did not provide the necessary advice and consent- they can only do so with a vote. Instead the schedulers of hearings decided that they would hold no hearings, and usurped the Powers of both the Presidency and the entire Senate, at once. Their blockage of the system still has left the US district courts empty.

2. Mitch McConnell admits he did it to preserve a Republican advantage (video here) They and several other Republican Senators promised, publicly to block any HRC nomination for 4 years.

In addition, there were 79 judgeships that were filibustered- more than the entire history of the United States- this is a pattern of behavior, done to subvert the democratic process, and the Constitution

Contrary to popular belief; the reason this was so unprecedented is that it has been litigated, and case law accumulated- the Supreme Court has been clear, over 6+ cases spanning 150 years- Congress has very limited powers to interrupt Appointments, and rejections are supposed to be for clearly unqualified or unsuitable candidates.

Myers v. United States

Chief Justice Taft stated qualifications set by Congress may not “so limit selection and so trench upon executive choice as to be in effect legislative designation.”

 

For the Originalists:

Washington wrote in his diary that Thomas Jefferson and John Jay agreed with him that the Senate’s powers “extend no farther than to an approbation or disapprobation of the person nominated by the President, all the rest being Executive and vested in the President by the Constitution.”

If they met in secret to decide this,  without a reporter- this would likely be an additional violation

Buckley v. Valeo, 424 U.S. 1 (1976)

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)

Myers v. United States, 272 U.S. 52 (1926)

Morrison v. Olson, 487 U.S. 654 (1988)

Weiss v. United States, 510 U.S. 163 (1994)

Edmond v. United States, 520 U.S. 651 (1997)

 

Effects of McConnell’s Judiciary Obstruction lags on, creating delays

Chart of US Federal vacancies

Caseloads grow in Nevada, US as judicial vacancies unfilled

Chief U.S. District Judge Gloria Navarro in Las Vegas said the vacancies have “a huge impact, considering our caseload is going up and up and up.”

According to the Administrative Office of the U.S. Courts, the number of case filings in the Nevada district is higher than the national average for federal district courts. Nationwide, district court caseloads grew 6 percent last year alone.

There are now- due to McConnell’s deliberate slowing down the business of the American government 131 federal judgeships open. 13 Appellate seats,

McConnell Intent to Obstruct Testimony

Listen to McConnell here speak of his colleagues like the Founding Fathers- the Biden Rule- there was never a “Biden Rule” nor did Chuck Schumer set binding precedent for Constitutionally Mandated Duty with some off hand remarks. This action he took is completely unprecedented, the Senate Majority leader with one other Republican, vetoed the Appointment of the Chief Justice of the DC Circuit to the Supreme Court, the smallest jump imaginable..by the twice elected President, for no apparent reason.

He talks about the Democrats blocking Bork, the guy who fired the prosecutor investigating the break in ordered by the Republican Presidential Campaign, into the Democrats’ headquarters and covered up by the President, is the nominee for Supreme Court Justice? Why would you make it so obvious you’re promoting someone who went party over principle when it mattered. This guy didn’t even have to take a real stand- two guys before him resigned so they wouldn’t do the deed he did. So the Democrats didn’t vote for a guy who stopped the investigation of the break in to their head quarters- well, that’s a real head scratcher. I guess in politics you never can tell.

He says this precedent was set over decades, yet even that horrible and stupid pick for a nominee, Bork, got a vote, which he lost, as he should have.

8 Republican Senators said they would meet with Garland, and were refused by McConnell- they can meet with him but they will still not get to vote on him no matter what they decide, because Mitch and Chuck are the only people in the world who can schedule a hearing and they won’t do it.

Why? He thinks the American people should decide, and oh, it could flip the balance on the court to the Democrats and Obama’s influence would be for years to come. so, of course he will do what he can to delay this from happening.

Intent to Obstruct
Intent to Obstruct
No hearings for the longest time in Senate history
Obstruction of Justice
Obstruction of Obama’s Civil Rights
Obstruction of 59 judge ships

Senators McConnell and Grassley refused Constitutional Appointments Duty

Illegal actions tipped Supreme Court Balance

McConnell Garland Supreme Court Matter

Appointments Clause

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….

Article II, Section 2, Clause 2

Scope:

When Mitch McConnell and Charles Grassley refused to give the Senate’s Advice -a Constitutionally Mandated Duty- on the twice elected President Obama’s nomination of Merrick Garland- the Chief Judge of the DC Court of Appeals -( essentially the position most like Supreme Court Seat without being a Supreme Court Seat, as boring and uncontroversial a pick as can be imagined ) to the Supreme Court it was unprecedented event in the history of the United States– holding up the business of the United States of America for a group that did not exist at the time of the writing of the Constitution- the interests of the Republican Party. Further it was part of a clear pattern- more judges blocked- 79 during Obama’s tenure then have been blocked by the Senate in the history of the Senate (59)

Mitch McConnell  refused to give Constitutionally Mandated Duty  Presidential Appointment Advice and did so without a legitimate reason.
The  actual reason was clear; do not allow the Constitutionally Elected President to Appoint Supreme Court Justices as he should Choose, unless he is a Republican President. This is not speculation but demonstrated by the statements of the Senate of time. The Intent was corrupt, naked power grab, as part of a deliberate, and public strategy to refuse to acknowledge the Power and Authority of the elected President. They did so, because the power of the Supreme Court had helped to keep their Party in Power for decades.
The reason for not stating a reason is also clear; naming that intent is what would be used in a trial for treason.

He held off for a year, and then rammed through the next President’s pick of Gorsuch, repealing the filibuster in order restoring the deciding vote to the conservative or Federalists on the  Supreme Court.

In the previous 200+ years of precedent- the pattern is the same, Supreme Court vacancy, hearing, position filled in under 120 days, only with great cause*-is a nomination like Bork’s very normally with a vote that’s 60-40 or something, trends but doesn’t follow the party lines- no  filibuster, a regular vote, a rare thing since Kentucky Senate Majority Leader McConnell has held the reigns of Senate power.

He Refused the Senate’s Constitutional responsibility to give Advice to the President on his Supreme Court pick, and far worse, cannot identify a legitimate reason to  have done something so extreme to Obama but nothing to George W Bush or Donald J Trump- President Barack Obama relatively scandal free two Term President  to seat a Supreme Court Justice, something which has never before happened, no vote at all, shut down the President.  Far from perfect, but nothing that could be said for him that could not be said for the Republican Presidents of the Era.  Total breach of authority and violation of separation of powers that are clearly delineated by text and by famous precedent.. Not even during the “Civil War” did something so blatantly unconstitutional happen

The President shall- by and with the Senate- Shall means it is a command, not a discretionary duty. While the letter of the law does not impose limits on the time frame- precedent does. Precedents and traditions, as a matter of law should not be overturned for transient causes, no cause given, or worst- a corrupt cause.   The President had a right to Promote the Chief Judge of the DC Circuit to the Supreme Court, and the Senate’s got to have a reason, and has to have a vote. If Mitch McConnell conspired to refuse a Constitutionally mandated duty – process from occurring to maintain control of a branch- holding the operations of Justice to his will alone- delaying many cases by months and years so he gets his preferred Judicial nominees, either for himself or for the Republican Parties decision tree, this is coup d’etat. Affecting as it did a swing vote, which was used in several decision this past year to overturn precedents, and to squash legitimate functions of government that manage the election of other branches. This sort of behavior is the elements of treason.

Extreme examples of the principles
The letter of the law  in the Constitution says all certificates shall be opened, but does not specifically state that ALL electoral votes are to be counted for all parties in the election. This does not qualify as a loophole that Joe Biden could have literally thrown away the electoral votes for the opposing party.
The precedent by not acknowledging this extreme deviation for no discernible value to the American people as a whole, for the bidding of his Party, is a prelude to lawlessness; get into office and do as thou wilt shall be the whole of the law, while using resources created by law.

 

Authority quote

Appointments Clause- Heritage Foundation

Congress has continued the practice to this day. The Supreme Court has held that Congress may not provide itself with the power to make appointments, Buckley v. Valeo (1976), but it is unclear how far Congress may go in setting qualifications for principal officers without contravening the Framers’ interest in assuring the President’s accountability for the initial choice. President James Monroe declared that Congress had no right to intrude upon the President’s appointing power. In Myers v. United States (1926), Chief Justice Taft declared that the qualifications set by Congress may not “so limit selection and so trench upon executive choice as to be in effect legislative designation.” In Public Citizen v. U.S. Department of Justice (1989), Justice Anthony Kennedy, concurring, opined that the President’s appointing power was exclusive, and that only the Incompatibility Clause (Article I, Section 6, Clause 2) limits the range of his choice. The Court, however, has yet to make a definitive statement on the issue.

 

And there is no more corrupt intent. Public statements demonstrate that Mitch McConnell deliberately held up the operation of the Federal Court Systems from sea to shining sea, a form of obstruction of  Justice, because governments operation is the operation of Justice, such as it is or it isn’t. To have US Senator do that for the strength of his party’s position.. “strategically playing the game”, holding up people’s lives, costing taxpayer dollars, longer sentences, longer pre trial detention. So McConnell could maintain a Republican hold on the Supreme Court.

 

This so called conservative has been in Congressional power and set the record for filibusters, judicial filibusters, the largest increases in deficits in American history under Republican President

Path Forward

 

We believe to establish Justice in this country there must be a hearing on the matter, and that we need testimony from Obama, McConnell and the entire Senate Judiciary at the time. Supporting testimony from the Attorney General’s. It would be good to have a firmly established analysis of the judicial nomination patterns in context of 200 years of history in opinions from DC District Court.
In the future all such questions of Constitutionally Mandated Duty,should get on the record opinions from the Executive and Justice branches. Petitions from the public of tangible Constitutional theory

Any and all Judicial nominations that were denied or confirmed from 2009 till present must be examined and whether individually or as a class is a decision yet to be decided upon.

 

 

Footnote*

 

*- like Bork, a lawyer who despite great intellectual capacity- fired a special prosecutor, who investigated when a President ordered a burglary into the DNC headquarters. The person of any stripe, who thinks their duty is to aid in the obstruction of Justice has no business being called a Justice. Further he broke into DNC headquarters, then you expect Democrats to vote for him? Height of a hubristic pick.

Appointments clause text from Heritage

Constitution the Supreme Law of the United States

Appointments Clause

ARTICLE II, SECTION 2, CLAUSE 2

 

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….

This clause contemplates three sequential acts for the appointment of principal officers—the nomination of the President, the advice and consent of the Senate, and the Appointment of the Official by the President. This clause applies to principal officers in contradistinction to inferior officers, whose appointment is addressed in the next portion of the clause. Although the Senate must confirm principal officers, including Ambassadors and Supreme Court Justices, Congress may choose to require that any officers whose office is “established by Law” be confirmed by the Senate, whether they be inferior or not.

The important questions for principal officers and their confirmation are, first, whether the President has plenary power of nomination or whether the Constitution limits this power by requiring the President to seek prenomination advice; second, whether the President must nominate only those who meet qualifications set by Congress; and, third, whether the Senate has plenary power to reject nominees or whether that power is circumscribed by some standard.

Appointments Clause, cont.

 

Both the debates among the Framers and subsequent practice confirm that the President has plenary power to nominate. He is not obliged to take advice from the Senate on the identity of those he will nominate, nor does the Congress have authority to set qualifications for principal officers. The Senate possesses the plenary authority to reject or confirm the nominee, although its weaker structural position means that it is likely to confirm most nominees, absent compelling reasons to reject them.

 

The very grammar of the clause is telling: the act of nomination is separated from the act of appointment by a comma and a conjunction. Only the latter act is qualified by the phrase “advice and consent.” Furthermore, it is not at all anomalous to use the word advice with respect to the action of the Senate in confirming an appointment. The Senate’s consent is advisory because confirmation does not bind the President to commission and empower the confirmed nominee. Instead, after receiving the Senate’s advice and consent, the President may deliberate again before appointing the nominee.

The purpose of dividing the act of nomination from that of appointment also refutes the permissibility of any statutory restriction on the individuals the President may nominate. The principal concern of the Framers regarding the Appointments Clause, as in many of the other separation of powers provisions of the Constitution, was to ensure accountability while avoiding tyranny. Hence, following the suggestion of Nathaniel Gorham of New Hampshire and the example of the Massachusetts Constitution drafted by John Adams, the Framers gave the power of nomination to the President so that the initiative of choice would be a single individual’s responsibility but provided the check of advice and consent to forestall the possibility of abuse of this power. Gouverneur Morris described the advantages of this multistage process: “As the President was to nominate, there would be responsibility, and as the Senate was to concur, there would be security.”

The Federalist similarly understands the power of nomination to be an exclusively presidential prerogative. In fact, Alexander Hamilton answered critics who would have preferred the whole power of appointment to be lodged in the President by asserting that the assignment of the power of nomination to the President alone assures sufficient accountability:

[I]t is easy to show that every advantage to be expected from such an arrangement would, in substance, be derived from the power of nomination which is proposed to be conferred upon him; while several disadvantages which might attend the absolute power of appointment in the hands of that officer would be avoided. In the act of nomination, his judgment alone would be exercised; and as it would be his sole duty to point out the man who, with the approbation of the Senate, should fill an office, his responsibility would be as complete as if he were to make the final appointment. The Federalist No. 76.

Chief Justice John Marshall in Marbury v. Madison, Justice Joseph Story in his Commentaries on the Constitution of the United States, and the modern Supreme Court in Edmond v. United States (1997) all confirm that understanding.

Congress establishes offices, and the President, at least in regard to principal officers, nominates office holders. Under the Necessary and Proper Clause (Article I, Section 8, Clause 8), Congress has often established qualifications for those who can serve in the offices it has created, thereby limiting the range of those the President can nominate. Andrew Jackson protested that such acts were an unconstitutional infringement of his appointing power, but Congress has continued the practice to this day. The Supreme Court has held that Congress may not provide itself with the power to make appointments, Buckley v. Valeo (1976), but it is unclear how far Congress may go in setting qualifications for principal officers without contravening the Framers’ interest in assuring the President’s accountability for the initial choice. President James Monroe declared that Congress had no right to intrude upon the President’s appointing power. In Myers v. United States (1926), Chief Justice Taft declared that the qualifications set by Congress may not “so limit selection and so trench upon executive choice as to be in effect legislative designation.” In Public Citizen v. U.S. Department of Justice (1989), Justice Anthony Kennedy, concurring, opined that the President’s appointing power was exclusive, and that only the Incompatibility Clause (Article I, Section 6, Clause 2) limits the range of his choice. The Court, however, has yet to make a definitive statement on the issue.

Closely related to the Framers’ interest in assuring accountability was their interest in avoiding an appointment that would be the result of secret deals. In defending the clause’s structure of presidential nomination and public confirmation, Hamilton contrasted it with the appointments process by a multimember council in his own state of New York. Such a council acting in secret would be “a conclave in which cabal and intrigue will have their full scope….[T]he desire of mutual gratification will beget a scandalous bartering of votes and bargaining for places.” Delegates to the Constitutional Convention had expressed similar concerns. If the Senate had a formal prenomination advisory role, the Senate leaders and the President might well be tempted to make a deal that would serve their parochial interests and then be insulated from all but pro forma scrutiny. Other contemporaneous commentary on the Appointments Clause repudiates any special constitutional prenomination role for the Senate. James Iredell, a leading proponent of ratification in North Carolina and subsequently a Supreme Court Justice, observed at his state’s ratifying convention: “As to offices, the Senate has no other influence but a restraint on improper appointments. The President proposes such a man for such an office. The Senate has to consider upon it. If they think him improper, the President must nominate another, whose appointment ultimately again depends upon the Senate.”

The practice of the first President and Senate supported the construction of the Appointments Clause that reserves the act of nomination exclusively to the President. In requesting confirmation of his first nominee, President Washington sent the Senate this message: “I nominate William Short, Esquire, and request your advice on the propriety of appointing him.” The Senate then notified the President of Short’s confirmation, which showed that they too regarded “advice” as a postnomination rather than a prenomination function: “Resolved, that the President of the United States be informed, that the Senate advise and consent to his appointment of William Short Esquire….” The Senate has continued to use this formulation to the present day. Washington wrote in his diary that Thomas Jefferson and John Jay agreed with him that the Senate’s powers “extend no farther than to an approbation or disapprobation of the person nominated by the President, all the rest being Executive and vested in the President by the Constitution.” Washington’s construction of the Appointments Clause has been embraced by his successors. Some Presidents have consulted with key Senators and a few with the Senate leadership, but they have done so out of comity or political prudence and never with the understanding that they were constitutionally obliged to do so. A law setting qualifications would not only invade the power of the President, it would also undermine the authority of the Senate as the sole authority to decide whether a principal officer should be confirmed.

The other principal controversy arising from the Appointments Clause has concerned the authority of the Senate to reject nominees. The Senate has independent authority in that it may constitutionally refuse to confirm a nominee for any reason. While ideology and jurisprudential “point of view” were not among the kinds of concerns listed by the Framers as justifying the requirement of advice and consent, nothing in the text of the clause appears to limit the kind of considerations the Senate can take up. It is thus reasonable to infer that the Framers located the process of advice and consent in the Senate as a check to prevent the President from appointing people who have unsound principles as well as blemished characters. As the President has complete discretion in the use of his veto power, the Senate has complete and final discretion in whether to accept or approve a nomination.

Given that the Senate was not to exercise choice itself, it appeared to Alexander Hamilton that a nominee should be rejected only for “special and strong reasons.” The President’s power of repeated nomination provides a check on the Senate’s ability to reject a nominee on something less than an articulable weighty reason. In fact, Hamilton argued that if the Senate fails to make that case and rejects the nominee for a pretextual reason, the President would generally be in a position to find a second candidate without these putative defects who generally shares the President’s point of view. It is rare, however, for a President to renominate a person to a position once the Senate has declined to accept the nomination.

The President does possess an advantage in the unitary nature of the executive office as compared to the diffuse and variegated nature of the Senate—even when it is controlled by the opposition party. The President is a single individual, whereas the Senate is a body composed of many individuals with a wide range of views, including members with views like that of the President. When the President has a substantial basis of party support in the Senate and thus a nucleus of probable supporters, he has leverage for confirmation. Thus, the image of a divided government as a government in any sense equally divided when it comes to an analysis of the Appointments Clause and the confirmation process is a fundamentally false image, as George Mason recognized: “Notwithstanding the form of the proposition by which the appointment seemed to be divided between the Executive & Senate, the appointment was substantially vested in the former alone.” Moreover, the President’s advantage in the process is a considered feature of the Framers’ design: they knew how to create a process by which the power of the executive and the Senate would be rendered more equal. Unlike the approval of treaties, it does not take a supermajority to approve a presidential nominee.

Because the President has the initiative of choice in the appointments to the executive branch and the judiciary, the views of his prospective appointees are more likely to become a presidential campaign issue than in senatorial campaigns. Since he possesses the greatest discretion, the political process fastens upon him the greatest accountability. However, when a substantial number of Senators assert that there are strong and compelling political reasons to reject a nominee (as opposed to rejecting one because of a flawed character), the Constitution’s structure ensures a confirmation battle. As such, the Constitution contains mechanisms designed to contain conflict within the republican process in order to protect against the degeneration of the Republic’s original ideals and thus ensure the Republic’s stability. The Appointments Clause is a prime example of such a mechanism. It structures the confirmation process so that when two of the Republic’s national governing branches are in fundamental disagreement, there will be a struggle to persuade the people of the correctness of their respective positions. In the case of a struggle over constitutional interpretation as in a Supreme Court nomination, the public will be forced to consider the first principles of the Republic—in this case, the role of the judiciary and the proper method of interpreting its governing document. Citizens will thus vicariously enjoy some measure of the experience of the Framing of the Constitution, thus contributing to the Republic’s self-regeneration.

John O. McGinnis

George C. Dix Professor in Constitutional Law Northwestern University School of Law