Tuesday, March 29, 2016

No, "Marbury" Did not Settle the Garland Issue, Why do You Ask?

[This Post has Been Updated: Details Below]

Jonathan Adler at Volokh Conspiracy thinks the Senate can sit on its hands with respect to President Obama's nomination of judge Garland.  In a recent post he approvingly quotes Seth Barrett Tillman who says that this issue was fully resolved by Marbury v. Madison. "[F]or over two centuries," said Tillman, "the received wisdom—based on the highest legal authorities—has been that ... the Senate has no duty to consider any of the President’s nominees." In fact, said Tillman, this is so clear that he finds it a mystery how anyone could think otherwise.

What Tillman says is twaddle. The mystery is the fact that Jonathan Adler stoops to adopt this argument without comment, and the fact that the Washington Post and the Volokh Conspiracy let him do it.

Tillman is a "lecturer" at Maynooth University (a venerable campus of the National University of Ireland).

He made his "everybody knows this has been settled for 200 years" claim in response to an Op-Ed by the deans of Harvard law School and Pepperdine Law School. The two deans cautioned that a nonpolitical judiciary is central to our American system of justice. The Senate's refusal to even consider the President's nominee to be the next associate justice of the Supreme Court, they suggest, is playing with fire: it threatens the treasure that is our independent judiciary. They also imply that the Senate's refusal violates Article 2, Section 2 of the constitution.

Everybody knows this was all settled by Marbury v. Madison, suggests Tillman:
Deans Minow and Tacha wrote that “President Obama [has a] clear constitutional duty to nominate a successor” to Scalia. This precise issue was addressed by the Supreme Court in Marbury v. Madison. In 1803, Chief Justice Marshall wrote that the President’s nominating a person to an office is “completely voluntary,” not a duty, much less a constitutional duty. In 1999, the United States Department of Justice’s Office of Legal Counsel issued an opinion stating: “The Constitution thus calls for three steps before a presidential appointment is complete: first, the President’s submission of a nomination to the Senate; second, the Senate’s advice and consent; third, the President’s appointment of the officer, evidenced by the signing of the commission. All three of these steps are discretionary.” See Appointment of a Senate-Confirmed Nominee, Vol. 23 Opinions of the Office of Legal Counsel, page 232 (1999) (Koffsky, Acting Deputy Assistant Attorney General). In short, for over two centuries, the received wisdom—based on the highest legal authorities—has been that the President has no duty to nominate anyone to a vacant office, and the Senate has no duty to consider any of the President’s nominees.
Why Deans Minow and Tacha would assert otherwise is a mystery.
Adler adopts the argument without comment.

What was Marbury Really About?

In fact, Marbury did not raise the Garland issue in any way. The Garland issue is: does Article 2 require the Senate to act on a nomination; the Marbury issue was: did the president make an irrevocable appointment.

Marbury involved the lame duck appointment of several justices of the peace for the District of Columbia. Shortly before the end of his term, John Adams, the second president of the United States (in office March 4, 1797 to March 4, 1801), signed a commission for William Marbury to serve as justice of the peace for a five year term. The new president, Thomas Jefferson, didn't care for the Federalist policies of his predecessor and so he refused to deliver the commission to Marbury and appointed someone else in his place.

Chief Justice Marshall noted that the President has absolute political discretion as to whom to nominate for an office, and the Senate has absolute political discretion whether to approve or not approve any nominee presented by the President.  Even after the Senate gives its approval to a nominee, the president retains discretion whether to appoint or not until such time as he physically signs the commission and hands it to the Secretary of State to place his seal upon it, said the court.

In Marbury Chief Justice Marshall concluded that all requisite steps were followed and Marbury was entitled to his commission. But Marbury lost the case because the court, for technical reasons (no right of mandate) could not grant him a remedy.

The reason we remember Marbury, of course, is not for its result, but for the discussion along the way.  Chief Justice Marhsall strongly asserted and established what was not explicit in the constitution: the right and power of the court to review Presidential and Congressional action for consistency with the constitution.
The judicial power of the United States is extended to all cases arising under the Constitution. Could it be the intention of those who gave this power to say that, in using it, the Constitution should not be looked into? That a case arising under the Constitution should be decided without examining the instrument under which it arises? This is too extravagant to be maintained. In some cases then, the Constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read or to obey?
Marbury, pp. 179-180.

The Chief Justice discussed the difference between political discretionary powers and duties "assigned by law." With respect to discretionary powers he said, the president "is accountable only to his country in his political character and to his own conscience." Marbury p. 166-167.  The exercise of the President's discretionary political power is not reviewable by the courts, said the Chief Justice. And that's also true if those powers are exercised by subordinate officials, and he gave the example of officials carrying out the country's foreign policy.

By contrast, "where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy." Id., at p. 167. In other words where a duty is non-discretionary it is reviewable by the courts.

The question raised by the Garland nomination is whether the Senate has discretion to sit on its hands and do nothing in response to a nomination made by the president?  Marbury tells us that the court has a role to play in interpreting the phrase "the president shall nominate... and with advice and consent of the Senate appoint;" the court gets to decide whether this means the Senate has a duty to act.

And no, Marbury did not address, answer, or settle the question.  When the issue reaches the court it will be an issue of first impression.


This post has been revised. I made some intemperate comments unfairly attacking professor Tillman in the original version yesterday.  Professor Tillman took exception and I have apologized and removed the offending and erroneous material. I reiterate my apology here. 

Professor Tillman has some interesting observations about the historical usage of the words "will" and "shall." See his short article with Nora Tillman HERE.  His three blogposts arguing that Marbury "settled" that the Senate has discretion to ignore a presidential nomination for the Supreme Court and do nothing are HERE (Pt. 1), HERE (Pt. 2), and HERE (the open letter to Deans Minow and Tacha). 

Here is my email to Professor Tillman following up on the substance: 
Hello Professor Tillman:

I like the short piece on “will” and “shall.” As you note, not much definitive comes from this interesting inquiry. You suggest that in the phrase “The President… shall nominate, and by and with the advice and consent of the Senate …. shall appoint judges of the Supreme Court” the “shall” might be read as “will” in terms of our modern usage. Bryan Garner, of course, is a big advocate of using “will” instead of “shall” in drafting contracts. I’m not sure substituting “will” for “shall” in Article 2, cl. 2 would affect the court’s evaluation.

Your March 24 piece quotes from Chief Justice Marshall in Marbury. You do so, however, without discussing the facts, the issue being decided, the holding of the case, or the overall legacy of Marbury as such. I’m sure they teach this stuff the same at Harvard as where I went to school: we take the holding from cases, and all else is dicta to be treated with care. In order to figure out the holding of the case we need to pay close attention to the facts and the context in which the issue arises. The issue in Marbury was pretty narrow and, indeed, “specific” to use your word: did President Adam’s signing the commission and the Secretary of State affixing his seal make the appointment irrevocable for Jefferson? The subsidiary issue, long forgotten, is “was mandamus available in that case?”

As you know, President Adams had nominated William Marbury (and others) for five year terms as justices of the peace. The Senate gave its consent, and the President signed the commissions and the Secretary of State put his seal upon them. The question whether the Senate has a duty to act was not in question in this case, and was not among the issues raised. Anything the court said with respect to the Senate’s nomination, therefore, was dicta. The issue in the case was whether the appointment made by Adams became irrevocable by Jefferson when he assumed office in light of the fact that Marbury was not yet seated on the bench. Agreed so far?

The court held the appointment became irrevocable, but there was no remedy for Marbury.

You quote the Chief Justice as saying the nomination “is the sole act of the President and completely voluntary.” Well, article 2, cl 2 says “The President shall nominate”…. and you offer perhaps this should be read as “The President will nominate.” In light of the language in the constitution, whether it’s “shall” or “will,” the obvious intent (see Marshall’s discussion at p. 167) of the Chief Justices’s language is “the president has discretion whom to appoint,” not “whether to appoint." You read it more broadly: that the the Chief Justice meant the president has absolute discretion whether to appoint anyone at all. And then you elevate this (I think tendentious) meaning to the holding of the case. I’m skeptical that’s what they teach first year law students at Harvard they should be doing.

Chief Justice Marshall, of course said nothing whatsoever about the Senate’s role being “voluntary.” He focused exclusively on the President. Correctly so, since it’s the president’s action that was at issue. You would acknowledge, I presume, that even if the President’s role were discretionary in the broader sense you claim, (i) it’s dicta, and (ii) it would not preclude a reading that the Senate does *not* have similarly broad discretion; i.e. that the Senate’s discretion is limited to the narrower sense of “discretion to reject or approve a particular nominee.” Justice Breyer, I suspect, would say the president can’t exercise his constitutional power (whether you think this mandatory or discretionary) without the cooperation of the Senate, and so the Senate can’t withhold its cooperation. I don’t follow how you get from ambiguous dicta about the president’s role to nominate and appoint, to “this precise issue (meaning can the Senate sit on its hands with respect to a nomination) was addressed by the Supreme Court in Marbury."

The key piece of Marbury that has come down through the ages, of course, is that it is the court who will make that call. Did you read the recent piece by Adam Liptak in the NYT about Chief Justice Roberts frustration with the broken down nomination process. Have you read my post on Marbury and NLRB v. Canning? I’m sure you agree that Justice Breyer is at least as concerned about the functional needs of the nomination process, and respectful of historical practice, as he is about originalist pilpul about “will/shall.” And I assume you agree this issue is an appropriate one for the court to resolve. Seems, e.g. Marbury would be pretty solid precedent that Judge Garland, for example, would have standing to bring a claim. (Not that he would) And I’m sure you’re aware of the low regard Justice Scalia had for this kind of professorial pontificating.

So how would this go in the Supreme Court if someone frames the issue—e.g. the issue framed by you and Adler vs. the issue framed by Mazzone and Kar? [See my Canning piece] You suggest that the issue is so clear of how it would go that it’s not even up for discussion: the dicta in Marbury, which I think you misinterpret, settled it, you say. You think that’s what Breyer would say? Well, I would not bet on that. I wouldn’t bet on Roberts saying that for that matter.

A brief word on the 1999 Deputy AG Daniel Koffsky opinion regarding whether the President has discretion not to seat a nominee after the nominee has been approved by the Senate. That (not whether the Senate can sit on its hands) is the specific issue raised by Marbury. Koffsky correctly notes that Marbury confirmed the President has discretion whether to appoint a particular individual until the appointment has in fact been made. This is uncontroversial. It adds nothing to the discussion.

I have looked at the Clinton article. I was out of line on what I said about it. I am rewriting the blog post.

In short, what you have presented is arguable dicta about the president’s appointment powers. But I see no argument addressing whether the Senate can elect to do nothing (ever) on presidential nominees. Moreover, reading NLRB v. Canning, it’s doubtful Breyer et al would accept your proposition.

As to Deans Minow and Tacha: to say that your reading of this has been the received wisdom for two centuries and is so clear that it’s a mystery why anyone would assert otherwise, is at the very least calling into question their knowledge and good judgment. They are not alone, of course, in their view that the Senate has a duty to act. And for good reason. Marbury did not raise the issue, and we don’t know what the court would say. To suggest that no one could come up with arguments that might find a receptive ear at the court for the proposition that a) no, Marbury did not address, much less resolve the issue, and b) the Senate may not delegate a sitting president’s appointment powers to a future president 11 months, or three terms removed, as they see fit…. well, that strikes me as lacking of imagination.

Roland Nikles

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