At the New Reform Club, Seth Barrett Tillman has two further posts on the Senate and appointments:
Part 3: More On Why The Senate Has Not Defaulted On Its Purported Constitutional Duty
Part 4: Why Senate Inaction As A Response To A Presidential Nomination Is Constitutional
The latter post critiques the paper by Professors Kar and Mazzone that I discussed here. Professor Tillman argues in part:
Senate inaction could be thought to work a delegation or transfer if the Constitution vested the nomination and appointment of statutory officers in the “current President” or the “President in office” or the “President in being.” As I understand them, Kar & Mazzone imagine these powers are tied to a particular person holding the presidency such that if his or her personal exercise of them are frustrated the Constitution has been frustrated, and in effect, power has been wrongfully transferred, delegated, etc.
But, as I read it, the Constitution’s text just vests the nomination power and the appointments power in the “President.”
Different people are President at different times and come into office in different ways. But the office of President is a continuous entity (like the houses of Congress are continuous bodies) existing across time, although held by different people. That is why—in theory—a President can nominate a person to office, the Senate can give its advice and consent, and if the President should be displaced by election or succession, then the successor President can make the appointment. As long as each step is done by a President and Senate, as long as each step is in the right sequence, then, as a matter of constitutional law, the identity of the person holding the presidency makes no difference. (Likewise, it does not matter, as a matter of constitutional law, if the Senate which acts on a nomination is: (i) the Senate in being at the time the nomination is made or (2) the next Senate following an election.) There are a few provisions in the Constitution with express time limits, but the Appointments Clause is not one of them.
Sounds right to me. Professor Tillman and I disagree on some details (see here, and his "Part 3" above) but we have the same basic conclusion on the issue, which is that the Senate has no constitutional duty to hold hearings or vote on a nomination.
Posted at 9:07 AM