# Textualist meaning of "shall" re SC. **URL:** \ **Category:** Great Debates\ **Created:** [February 21, 2016, 4:15pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697 "2016-02-21T16:15:32Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [February 22, 2016, 12:01am UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/41 "2016-02-22T00:01:08Z")
> [@Bone](#): > > Just what do you think should be the requirement then? That the nominee get a vote? That they get a hearing? A hearing at minimum. Otherwise you can’t in good faith say the Senate has attempted to advise. And the people of the United States gets a look at their handling of the vetting. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 22, 2016, 12:05am UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/42 "2016-02-22T00:05:29Z")
> [@CarnalK](#): > > The history of nominations? No nominee has failed to be discussed since the Civil war. This “lame duck presidents can’t nominate” is what needs a cite. What does that have to do with a textualist reading of the constitution? Note the parameters set in the OP for this thread. It’s not about what our personal opinions are, but about how a textualist would interpret the clause in question. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [February 22, 2016, 12:09am UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/43 "2016-02-22T00:09:11Z")
> [@CarnalK](#): > > A hearing at minimum. Otherwise you can’t in good faith say the Senate has attempted to advise. And the people of the United States gets a look at their handling of the vetting. How is holding a hearing in the text? Advice and Consent does not equal holding a hearing. It could be that, but it doesn’t have to be. Nothing in the text would lead to the conclusion that advice and consent is holding a hearing. And the people of the US are getting a look right now. ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [February 22, 2016, 12:10am UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/44 "2016-02-22T00:10:56Z")
Well since there’s no recourse, who cares what a textualist would say? Might as well as what a leprechaun would say. Same diff. ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [February 22, 2016, 12:14am UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/45 "2016-02-22T00:14:27Z")
> [@Bone](#): > > How is holding a hearing in the text? Advice and Consent does not equal holding a hearing. It could be that, but it doesn’t have to be. Nothing in the text would lead to the conclusion that advice and consent is holding a hearing. I only say a hearing because that’s generally the first step. The nominee goes to the judiciary committee and they set up a hearing. I am only saying that if it doesn’t even get entered on the Senate schedule then you can’t pretend the Senate has considered it. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 22, 2016, 12:19am UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/46 "2016-02-22T00:19:12Z")
> [@CarnalK](#): > > Well since there’s no recourse, who cares what a textualist would say? Might as well as what a leprechaun would say. Same diff. Only in the sense of whether the voters are textualists or not, since they are the one who will decide. Otherwise it’s purely an intellectual exercise of what would happen if the SCOTUS decided to hear a case on the meaning of that clause (which I doubt they would ever do anyway). ---
**Author:** ![Peremensoe](https://avatars.discourse-cdn.com/v4/letter/p/ce7236/32.png) [@Peremensoe](https://boards.straightdope.com/u/Peremensoe)\ **Post date:** [February 22, 2016, 12:20am UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/47 "2016-02-22T00:20:15Z")
> [@John\_Mace](#): > > Nope. “Advise and consent” is not “help”. It’s “advise and consent”. There is nothing in there that compels the Senate to vote. Well, I suppose you could say there’s nothing that allows them to vote, either. The word “vote” does not appear. We just understand that voting is how the Senate expresses its formal opinions. Perhaps they were giving us too much credit, but I think the authors of the Constitution would have also expected us to understand that when they said a thing “shall” happen, with the participation of President and Senate, that they meant that those parties ought to lift a finger to make it happen. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 22, 2016, 12:21am UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/48 "2016-02-22T00:21:04Z")
> [@CarnalK](#): > > I only say a hearing because that’s generally the first step. The nominee goes to the judiciary committee and they set up a hearing. I am only saying that if it doesn’t even get entered on the Senate schedule then you can’t pretend the Senate has considered it. But the constitution explicitly gives the Senate the authority to set its own rules. It needn’t even have committees. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 22, 2016, 12:27am UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/49 "2016-02-22T00:27:04Z")
> [@Peremensoe](#): > > Well, I suppose you could say there’s nothing that allows them to vote, either. The word “vote” does not appear. We just understand that voting is how the Senate expresses its formal opinions. The constitution requires that the president get “the consent” of the Senate. Since the Senate can set its own rules, it’s up to the Senate to define what “consent” consists of. If the Senate so chose, they could give consent by consulting a magic 8-ball, and then we voters would get to decide if we liked that practice or not. ---
**Author:** ![drad\_dog](https://avatars.discourse-cdn.com/v4/letter/d/aeb1de/32.png) [@drad\_dog](https://boards.straightdope.com/u/drad_dog)\ **Post date:** [February 22, 2016, 12:28am UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/50 "2016-02-22T00:28:31Z")
> [@Bone](#): > > Just what do you think should be the requirement then? That the nominee get a vote? That they get a hearing? That they be allowed to be nominated? I’m not sure what part you think is required that isn’t happening. When Obama nominates someone and the Congress [judiciary committee] says, thanks for the nomination - we’re not going to vote on it or take any action, would that be okay in your view? I’m trying to figure out at what point things are consistent with your view of the Constitution, and when they are not. > > Help me out here, Congress must do … what exactly? Accept that there is a nominee? Hold a hearing? Vote? When does not okay become okay? It’s been stated here before: “Get a hearing” Not OK not to vote. that’s withholding consent. Whats wrong with voting somebody down and letting the process continue? How are they immune from the clauses in which they are entangled with the POTUS in this process? ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [February 22, 2016, 12:34am UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/51 "2016-02-22T00:34:17Z")
As I said, I merely mean some formal step by the Senate. If the Senate holds no meeting, no vote, no on record discussion of the nominee they are disregarding their duty to advise. If it’s blocked from that, only the majority party leader is advising. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 22, 2016, 12:34am UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/52 "2016-02-22T00:34:41Z")
> [@drad\_dog](#): > > It’s been stated here before: “Get a hearing” > > Not OK not to vote. that’s withholding consent. > > Whats wrong with voting somebody down and letting the process continue? > > How are they immune from the clauses in which they are entangled with the POTUS in this process? Are you familiar with how [complex this process has been and how it has changed over time?](http://www.senate.gov/CRSReports/crs-publish.cfm?pid=%270E%2C*P%5C%3F%3F%20P%20%20%0AC:%5CDocuments%20and%20Settings%5Cgoodfriendma%5CMy%20Documents%5C08%20DAMASCUS%200856_files) Warning: PDF ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [February 22, 2016, 1:06am UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/53 "2016-02-22T01:06:01Z")
> [@CarnalK](#): > > As I said, I merely mean some formal step by the Senate. If the Senate holds no meeting, no vote, no on record discussion of the nominee they are disregarding their duty to advise. If it’s blocked from that, only the majority party leader is advising. You could also say that by a president nominating someone who he knows does not have the support of a majority of Senators, he is the one not acting in good faith in the process. (I hear your response already: “He hasn’t nominated ANYONE YET!!” However, we know the type of candidate he will nominate. See Kagan, Elena; Sotomayor, Sonia). If Obama nominated Charles Manson, should the Senate hold hearings and vote? If Obama nominated this guy: [J. Michael Luttig - Wikipedia](https://en.wikipedia.org/wiki/J._Michael_Luttig) then the Senate would surely vote and confirm him. However, we both know Obama will not do that. The process requires give and take on the side of the President and that of the Senate. Even though in practice much deference has been given to a president’s choice, that is not mandated by the Constitution, and as the choices the Supreme Court makes takes matters out of the hands of the people, you can expect the representatives elected by the people to scrutinize the President’s choices more carefully. Maybe if Obama and McConnell sit down, they could agree on a Sandra Day O’Connor type. Maybe not. But that is the “advise” part of the advise and consent. ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [February 22, 2016, 2:02am UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/54 "2016-02-22T02:02:07Z")
A textualist approach would look at the words and phrases and how similar wording was used elsewhere in the Constitution. It would examine the use of the word _ **shall** _ in the Advice and Consent clause and compare that to how such wording is used elsewhere. Further, a textual analysis would examine wording used elsewhere where the Constitutional addresses how two (or more) breaches of government are involved in carrying out some process. Some examples: > [@US Constitution](#): > > The House of Representatives \*\*\*shall \*\*\*chuse their Speaker and other Officers; and \*\*\*shall \*\*\*have the sole Power of Impeachment. > … > Each House \*\*\*may \*\*\*determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member. > > … > > No Senator or Representative _ **shall** _, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, \*\*\*shall \*\*\*be a Member of either House during his Continuance in Office. In each instance, _ **shall** _, when used in context, asserts a mandate or requirement. The House is instructed to choose a Speaker and their other officers. The House shall have the sole power of impeachment. No maybe about it. Had this been optional then the word _ **may** _ could have been used The word _ **may** _ is used when providing authority which is discretionary. A house of Congress may punish its members. But there is no mandate. No _ **shall** _ statement. Since the Advice and Consent clause used the word _ **shall** _, then a mandate is provided. Rules of grammar would determine to whom the obligation is imposed. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [February 22, 2016, 7:40am UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/55 "2016-02-22T07:40:29Z")
> [@CarnalK](#): > > I only say a hearing because that’s generally the first step. The nominee goes to the judiciary committee and they set up a hearing. I am only saying that if it doesn’t even get entered on the Senate schedule then you can’t pretend the Senate has considered it. > [@CarnalK](#): > > As I said, I merely mean some formal step by the Senate. If the Senate holds no meeting, no vote, no on record discussion of the nominee they are disregarding their duty to advise. If it’s blocked from that, only the majority party leader is advising. So the hearing isn’t required in your interpretation, but something is. Something that constitutes a formal step by the senate, but is more than the majority party leader making a statement. This is quite a squishy requirement. So when Obama nominates someone, do you think it will fall on deaf ears? There may or may not be a hearing, but that isn’t required in your view. They will no doubt discuss the matter among themselves and in the press - does that satisfy the formal step requirement? I get it that it would be desirable that the Congress take action rather than do nothing in this case. That is separate from whether there is a requirement to do so. And there is no such requirement. > [@drad\_dog](#): > > It’s been stated here before: “Get a hearing” > > Not OK not to vote. that’s withholding consent. > > Whats wrong with voting somebody down and letting the process continue? > > How are they immune from the clauses in which they are entangled with the POTUS in this process? Withholding consent can take any form that does not approve a nominee. I am assuming you mistyped here, because it’s clearly appropriate for the Senate to withhold consent. There is nothing wrong with voting somebody up or down and letting the process continue. It’s no required though and that’s the point of this thread. How is Congress immune from this clause? Because the “shall” that is used in this section of the constitution is directed at the President, not the Congress. Congress’s powers and duties are laid out in Article I. This utilization of “shall” is in Article II, which lays out the powers and duties of the President. ---
**Author:** ![drad\_dog](https://avatars.discourse-cdn.com/v4/letter/d/aeb1de/32.png) [@drad\_dog](https://boards.straightdope.com/u/drad_dog)\ **Post date:** [February 22, 2016, 6:25pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/56 "2016-02-22T18:25:21Z")
> [@Bone](#): > > So the hearing isn’t required in your interpretation, but something is. Something that constitutes a formal step by the senate, but is more than the majority party leader making a statement. This is quite a squishy requirement. So when Obama nominates someone, do you think it will fall on deaf ears? There may or may not be a hearing, but that isn’t required in your view. They will no doubt discuss the matter among themselves and in the press - does that satisfy the formal step requirement? > > I get it that it would be desirable that the Congress take action rather than do nothing in this case. That is separate from whether there is a requirement to do so. And there is no such requirement. > Withholding consent can take any form that does not approve a nominee. I am assuming you mistyped here, because it’s clearly appropriate for the Senate to withhold consent. > > There is nothing wrong with voting somebody up or down and letting the process continue. It’s no required though and that’s the point of this thread. > > How is Congress immune from this clause? Because the “shall” that is used in this section of the constitution is directed at the President, not the Congress. Congress’s powers and duties are laid out in Article I. This utilization of “shall” is in Article II, which lays out the powers and duties of the President. Consent means voting someone down too. It’s a process. It looks to me like they are part of it. So you are saying it’s established that they can stonewall and never vote? What form would this take? Just Eddy Arnold it (“Make the world go away”)? ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [February 22, 2016, 6:27pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/57 "2016-02-22T18:27:47Z")
You may think it’s squishy but it really isn’t. Holding a press conference is not putting something to the Senate for discussion. Tradition is often what holds governments and a country together, outside of military dictatorships. Throwing away the tradition of at least pretending you’re willing to discuss a nominee is not something that can be waved away with deep grammatical discussions. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [February 22, 2016, 7:02pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/58 "2016-02-22T19:02:52Z")
> [@drad\_dog](#): > > Consent means voting someone down too. So maybe before wasn’t a typo before because you’re using this word in the same way here. Consent means permission or agreement. Voting someone down would not be consenting. I think you’re using this word incorrectly. > [@](#): > > It’s a process. It looks to me like they are part of it. So you are saying it’s established that they can stonewall and never vote? Yes. Congress may stonewall and never vote and not offend the constitution. I wouldn’t support that, but it is an available option. It could take the form of a filibuster, where debate is not ended so there is no vote held. You’ve heard of this right? > [@CarnalK](#): > > You may think it’s squishy but it really isn’t. From a textualist standpoint, it is. You’re reading into “Advice and Consent” more than what is in the text. Once you go down that path, there is no guide but that which you create, and therefore it is squishy. You believe there must be a formal process, but that is not in the text. The Senate gets to set its own rules on what Advice and Consent mean to them. It could mean a formal process, but it isn’t necessary that it be so. ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [February 22, 2016, 8:00pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/59 "2016-02-22T20:00:26Z")
I can’t imagine a textualist would think “Ignore the text that says the President shall nominate someone, we think the next President should” is valid advice whatever format it’s delivered in. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 22, 2016, 8:10pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/60 "2016-02-22T20:10:04Z")
> [@CarnalK](#): > > I can’t imagine a textualist would think “Ignore the text that says the President shall nominate someone, we think the next President should” is valid advice whatever format it’s delivered in. The text doesn’t give a timeframe, so I’m not seeing a problem. No timeframe given means the president gets to set the timeframe. The text says he should seek advice from the Senate, and some in the Senate are offering the advice that he should allow the next president to make the nomination. I’m not seeing any textualist interpretation that would say there was a problem unless the advices was “no president should ever nominate anyone”. Most of us (I think) wouldn’t see a problem with waiting for the next president if Scalia had died after the upcoming election. So, there is nothing, per se, wrong with deferring to the next president. [Previous page](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697.md?page=2) [Next page](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697.md?page=4)