# 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:** 4
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [February 22, 2016, 8:11pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/61 "2016-02-22T20:11:15Z")
Well, I suppose I would consider myself a textualist, but Obama hasn’t nominated anybody. The Constitution doesn’t say “The President shall nominate appointees unless the party controlling Congress says he shouldn’t.” A textualist would also point out that the Constitution doesn’t say “Congress must give or withhold its consent during the same session wherein the nomination is made.” No timeline is specificed, and Congress has discretion as to when to take up the nomination. I understand it’s frustrating - Obama is not going to get to fill another seat on the SC. And there is a non-zero chance that the next President will be Republican, and he will. But that’s how the system is set up. Elections have consequences, and Mr. “Let’s Filibuster Alito” has now found out that this can come back and bite him in the ass. Regards, Shodan ---
**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, 8:19pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/62 "2016-02-22T20:19:32Z")
> [@Shodan](#): > > The Constitution doesn’t say “The President shall nominate appointees unless the party controlling Congress says he shouldn’t.” Exactly. I understand the GOP frustration “WTF? He gets to nominate another one!!!” and they just lashed out without thinking. But I’m sure once cooler heads prevail, it’ll probably still be a couple weeks before Obama makes a nomination, they’ll just put it through the normal procedure even if they have no intention of confirming. ---
**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, 11:36pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/63 "2016-02-22T23:36:39Z")
> [@Bone](#): > > 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. > > 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? > 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. Consent is expressed in the hearing that they may either vote up or down on. The president may nominate another candidate in the case of a down vote. Then they have more hearings and another vote. You’re positing a 9 month filibuster so that no votes need occur. They only try to do that in threadland. You want the R party to exist going forward you need to get real. ---
**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, 11:58pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/64 "2016-02-22T23:58:25Z")
> [@drad\_dog](#): > > Consent is expressed in the hearing that they may either vote up or down on. > > The president may nominate another candidate in the case of a down vote. > > Then they have more hearings and another vote. > > You’re positing a 9 month filibuster so that no votes need occur. They only try to do that in threadland. You want the R party to exist going forward you need to get real. Let’s assume, arguendo, that the text requires hearings. (I don’t believe for a second that it does, but let’s pretend.) What does the text say about the timeframe for those hearings? That is, what does a textualist reading of the constitution say about how quickly the Senate must hold such hearings? ---
**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 23, 2016, 12:22am UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/65 "2016-02-23T00:22:03Z")
I like what the [Senate page](http://www.senate.gov/reference/glossary_term/advice_and_consent.htm) says about this, since they are the ones who do the interpreting here: > [@](#): > > advice and consent - Under the Constitution, presidential nominations for executive and judicial posts take effect only when confirmed by the Senate Short and to the point. The president has the authority to nominate, but the nominee isn’t appointed (seated) until the Senate confirms him or her. That’s it. Nothing more and nothing less. ---
**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 23, 2016, 12:59am UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/66 "2016-02-23T00:59:20Z")
> [@drad\_dog](#): > > You’re positing a 9 month filibuster so that no votes need occur. They only try to do that in threadland. You want the R party to exist going forward you need to get real. Don’t confuse good policy with possibility. I’m making the argument that this type of delay is possible, not that it is good policy. ---
**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 23, 2016, 1:27am UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/67 "2016-02-23T01:27:05Z")
> [@Bone](#): > > Don’t confuse good policy with possibility. I’m making the argument that this type of delay is possible, not that it is good policy. Constitutionally possible. But in every other way not possible at all. Like most things. ---
**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 23, 2016, 1:42am UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/68 "2016-02-23T01:42:02Z")
> [@drad\_dog](#): > > Constitutionally possible. But in every other way not possible at all. Like most things. What on earth does that have do with the subject of this thread? I don’t even know what it means. In fact, I’m at a loss to understand how any of your posts in this entire thread have had anything at all to do with textualism. We’re not discussing what we wished that clause meant. ---
**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 23, 2016, 2:39am UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/69 "2016-02-23T02:39:49Z")
> [@John\_Mace](#): > > . > I’m not seeing any textualist interpretation that would say there was a problem unless the advices was “no president should ever nominate anyone”. And why would that be a problem? Textualistly speaking. How about “Only Republican Presidents should nominate”? ---
**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 23, 2016, 2:58am UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/70 "2016-02-23T02:58:24Z")
> [@CarnalK](#): > > And why would that be a problem? Textualistly speaking. Because the text is clear that president has the power to nominate, and that the court should exist. > [@](#): > > How about “Only Republican Presidents should nominate”? Good point. That’s another one, since clearly every president has the authority to do so, and as above, there is no guarantee that there will ever be a GOP president again. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [February 23, 2016, 7:16pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/71 "2016-02-23T19:16:57Z")
> [@John\_Mace](#): > > Ok. Textualist then. My take is that the shall is directed at the president (basic grammar), but no time frame specified. And since the court can opperate with 8 justices just fine, there is no need to impose an artificial timeframe. Well having 4-4 opinions can leave a lot of issues split between the circuits. > [@](#): > > ETA: i agree with Martin that most justices, textuslists or not, would not find there to be some timeframe involved. > > Where it gets more complicated is if the entire court were wiped out. I don’t know about nominations to the supreme court but generally speaking the law reads reasonableness into everything unless there is a clear decision to allow unreasonable behavior. I would suggest that failing to proceed on judicial nominations in order to deny the current president the ability to exercise one of their constitutional powers is not reasonable. ---
**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 23, 2016, 8:45pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/72 "2016-02-23T20:45:10Z")
> [@John\_Mace](#): > > Because the text is clear that president has the power to nominate, 《snip》 > > since clearly every president has the authority to do so, See taking these two statements together, I am having a hard time understanding why you think the Senate’s advice of “you shouldn’t make a nomination” is in line with the Constitution. ---
**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 23, 2016, 8:52pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/73 "2016-02-23T20:52:38Z")
Especially since it’s been pointed out that “shall” implies a duty even more than a right to do something. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [February 23, 2016, 9:22pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/74 "2016-02-23T21:22:17Z")
> [@drad\_dog](#): > > Consent is expressed in the hearing that they may either vote up or down on. > > The president may nominate another candidate in the case of a down vote. > > Then they have more hearings and another vote. > > You’re positing a 9 month filibuster so that no votes need occur. They only try to do that in threadland. You want the R party to exist going forward you need to get real. That is one way advice or consent could be given, but why do you believe it is the only way? Why can’t the Senate “advise” Obama that he should appoint Judge Luttig to the Supreme Court, and that they will not accept anyone else because it is convinced that Luttig is the right guy? ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [February 23, 2016, 9:29pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/75 "2016-02-23T21:29:32Z")
The problem with over-reading the “shall” is does it mean that the Senate is required to consent viz. **shall provide advice and consent**? So Obama decides to nominate Charlie Manson, does the Constitution require consent. If not then I don’t know how you read it to require the Senate to do anything. ---
**Author:** ![Peremensoe](https://avatars.discourse-cdn.com/v4/letter/p/ce7236/32.png) [@Peremensoe](https://boards.straightdope.com/u/Peremensoe)\ **Post date:** [February 23, 2016, 9:50pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/76 "2016-02-23T21:50:11Z")
The basic point is that the Constitution obviously expects the offices _to be_ filled, with the President plus the Senate conducting the process. There’s no way to square that with a flat refusal by the Senate to do anything. ---
**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 23, 2016, 9:51pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/77 "2016-02-23T21:51:07Z")
You know, if you read the whole thing, it seems obvious that the advice and consent is on the appointment, not the nomination > [@](#): > > he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of theSupreme Court, So telling him not to nominate is flat out obvious advising him to disobey the Constitution. He may appoint after the advice and consent, which of course implies it should go before the Senate in some form. I’ve been reading the cut up summary so much I forgot how clear this is. ---
**Author:** ![Peremensoe](https://avatars.discourse-cdn.com/v4/letter/p/ce7236/32.png) [@Peremensoe](https://boards.straightdope.com/u/Peremensoe)\ **Post date:** [February 23, 2016, 10:00pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/78 "2016-02-23T22:00:51Z")
> [@CarnalK](#): > > You know, if you read the whole thing, it seems obvious that the advice and consent is on the appointment, not the nomination > > So telling him not to nominate is flat out obvious advising him to disobey the Constitution. He may appoint after the advice and consent, which of course implies it should go before the Senate in some form. I’ve been reading the cut up summary so much I forgot how clear this is. I agree. The President really must nominate someone within a reasonable time, regardless what Senators may say. The Senate could certainly then reject that nominee, or several of them. But to be acting in accord with a plain understanding of their Constitutional responsibility, I think they have to _act_ on the nominations, on the record. ---
**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 23, 2016, 10:47pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/79 "2016-02-23T22:47:34Z")
> [@CarnalK](#): > > See taking these two statements together, I am having a hard time understanding why you think the Senate’s advice of “you shouldn’t make a nomination” is in line with the Constitution. > [@CarnalK](#): > > Especially since it’s been pointed out that “shall” implies a duty even more than a right to do something. Would you have a problem with that advice if Scalia died 1 day before the inauguration of the new 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 23, 2016, 10:55pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/80 "2016-02-23T22:55:20Z")
> [@CarnalK](#): > > You know, if you read the whole thing, it seems obvious that the advice and consent is on the appointment, not the nomination > > So telling him not to nominate is flat out obvious advising him to disobey the Constitution. He may appoint after the advice and consent, which of course implies it should go before the Senate in some form. I’ve been reading the cut up summary so much I forgot how clear this is. This is like groundhog vu. The answer was “They don’t have to. Nyah Nyah” just a few inches up and there was a PDF file to support it. [Previous page](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697.md?page=3) [Next page](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697.md?page=5)