At the New Reform Club, Seth Barrett Tillman: The Appointments Clause Imposes No Duty on the President To Nominate Supreme Court Justices, Other Article III Judges, and/or Executive Branch Officers. The Appointments Clause Imposes No Duty on the Senate To Confirm Candidates (in part responding to this post by me). The main issue between us is whether the President has a duty to nominate persons to fill vacancies (we agree that the Senate has no duty to confirm). Professor Tillman points out that he has Chief Justice Marshall on his side:
[Marshall wrote:] These are the clauses of the Constitution and laws of the United States which affect this part of the case. They seem to contemplate three distinct operations:
1. The nomination. This is the sole act of the President, and is completely voluntary.
2. The appointment. This is also the act of the President, and is also a voluntary act, though it can only be performed by and with the advice and consent of the Senate.
3. The commission. To grant a commission to a person appointed might perhaps be deemed a duty enjoined by the Constitution. “He shall,” says that instrument, “commission all the officers of the United States.”
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 155–56 (1803) (Marshall, C.J., for a unanimous Court). Chief Justice Marshall was unsure if the Commissions Clause was permissive or mandatory, but as to nomination and appointment, he was sure: the President’s conduct in regard to these events is characterized as “completely voluntary” and “voluntary,” respectively.
Now it seems to me that Marshall et al. could be right, or Ramsey et al. could be correct, but they cannot both be correct. Either a president’s proffering a candidate as a nominee is a “completely voluntary” act (per Marshall) or it is a “duty” (per Ramsey). Unless Ramsey can proffer some evidence contradicting Marshall, i.e., evidence other than his own and his contemporaries’ linguistic intuitions, I suggest the 1803 Court has liquidated all ambiguity in regard to the Appointment Clause’s use of “shall.” If he cannot put any evidence forward, then we should reject his position as “presumptively untenable.” Of course, the evidence he must put forward need not be as good as Marbury, but he needs to put forward some evidence. At the very least, he has a duty of production. Why? Because in an intellectual conflict seeking to resolve the original public meaning of a fairly disputed two-century old linguistic term, where one side has modern linguistic intuitions on its side and the other side has concrete evidence, evidence trumps. Or at least, it ought to.
I don't have a strong opinion on this one. I grant that Professor Tillman has some good evidence from Marshall — though I would note that (a) as he concedes, it's dicta; (b) more importantly, Marshall does not explain why he thinks the Constitution's text leads to his result; and (c) it's not completely clear to me whether Marshall is talking about the act of nominating in general, or the question of whom to nominate. Also, I must object to Professor Tillman's characterization of my view (that the President having a duty to nominate) as based on nothing but intuition. As I tried to argue in my prior post, I base my view mainly on the language and structure of Article II, which uses "may" or "shall have Power" to indicate a discretionary power of the President, and uses "shall" to indicate a non-discretionary power ("he shall take Care that the Laws be faithfully executed"). Apart from Marshall's unexplained view, I'm not sure why Professor Tillman thinks the "shall" in the appointments clause is voluntary but (I assume) he thinks that the "shall" in the take-care clause is not.
Posted at 6:01 AM