Think back to February 2016. Shortly after Justice Scalia's passing, Senate Republicans immediately coalesced on a strategy: any nominee by President Obama would not get a floor vote, let alone a confirmation hearing. Almost just as quickly, a constitutional argument formed out of the ether: the Senate had an obligation to vote on a President's nomination to the Supreme Court. I was an early critic of this view. The Harvard Law School Federalist Society Chapter invited me to debate this topic. Alas, no one on that august faculty was willing to debate me. So I debated myself. I articulated the views that Tribe and others advanced, as charitably as I could, then responded to those views. Seven years later, I had thought this argument would recede into history. It was not to be.
In New York there is a conflict between the executive and legislative branches. Governor Kathy Hochul nominated Hector LaSalle to serve as Chief Judge of the New York Court of Appeals (the highest court in the state). Progressives in the state charge that LaSalle is too moderate, or even (gasp!) conservative. I have zero interest in the politics of this internecine battle in a deep blue state. But there is a constitutional angle.
LaSalle might have enough votes to be approved on the Senate floor–especially if Republicans back the nominee. But it is not clear he has enough votes to get out of the judiciary committee. Aha! Governor Hochul has argued that the state Constitution requires the full Senate to vote on her nominee. The committee vote is irrelevant.
"He'll have his hearings; he'll answer questions; and then as required by the Constitution, the full Senate must decide because the Constitution says it's on the advice and consent of the Senate."
Garland redux! Or more precisely, this argument echoes the position raised in Walter Nixon v. United States. In that case, a Senate committee heard evidence in an impeachment proceeding. Then the full Senate convicted Judge Walter Nixon (not the former President). Nixon argued that the full Senate must hear all of the evidence, and that role could not be delegated to the committee. The Supreme Court found this issue was a non-justiciable political question, so the merits were never resolved. Still, I am skeptical that Nixon was right about the United States Constitution. The Senate, pursuant to the Rules of Proceeding Clause, has broad discretion over how to structure its affairs. I think it would be appropriate for a Senate to create a committee to gather evidence. The Senate could likewise decide that only a nominee that passes through committee can be presented for a floor vote. There is no obligation for the Senate to take a vote on a nominee.
Likewise, I think Governor Hochul has an uphill battle. Article VI, Section 2(e) of the New York Constitution provides:
The governor shall appoint, with the advice and consent of the senate, from among those recommended by the judicial nominating commission, a person to fill the office of chief judge or associate judge, as the case may be, whenever a vacancy occurs in the court of appeals;
I have zero expertise in the New York Constitution, but I struggle to see how this text requires the Senate to take any action on a nominee. Then again, during the Garland Saga, constitutional law professors argued that the phrase "advice and consent"imposes an obligation on the United States Senate.
Politico quotes the chair of the New York Senate Judiciary Committee, who rejected this argument:
Hoylman-Sigal, on Tuesday: "The Constitution does not require a floor vote, because in addition to the Constitution, we have Senate rules, and certainly it's within the Senate's prerogative to decide how to proceed with its own votes, in committee and otherwise."
Based on a quick read, Article III, Section 9 includes something similar to the Rules of Proceeding Clause in the federal constitution:
§9. A majority of each house shall constitute a quorum to do business. Each house shall determine the rules of its own proceedings, and be the judge of the elections, returns and qualifications of its own members; shall choose its own officers; and the senate shall choose a temporary president and the assembly shall choose a speaker.
If this provision is analogous to the federal standard, it would seem that the state Senate can establish its own rules. Requiring a committee vote before a floor would be well within that discretion. At least one law professor agrees:
"I go with the Senate on this one," said Richard Briffault, a professor at Columbia University and an expert on state constitutional law. "The Constitution doesn't specify any particular procedure the Senate is supposed to use, so that means, in my view, the Senate can use whatever procedure it wants."
Does the United States Constitution impose a duty on the Senate to vote on a nominee? Does the New York Constitution? Everyone, switch sides!
In times like these, I'm reminded of a memorable image Adriane Vermeule presented:
The second possible future I call the Merchant/Ivory Ballroom Scene. Think of the moment in any movie adaptation of a Jane Austen novel when two lines of dancers switch to opposite sides of the ballroom. Then the dance goes on as before. The structure of the dance at the group level is preserved; none of the rules of the dance change; but the participants end up facing in opposite directions.
So, Barack Obama, Merrick Garland, Kathy Hochul, and Hector LaSalle walk into a bar…
Update: The Senate Judiciary Committee rejected LaSalle by a 10-9 vote.
The 19-member committee voted 10 to 9 against moving Justice LaSalle to a full vote on the Senate floor. All 10 who voted against the judge were Democrats; two Democrats voted in favor of Justice LaSalle, while one Democrat and all six Republicans voted in favor "without recommendation."
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