Balkinization: A Fascinating Question

Comments:

Customs. Ha ha.

Anyway, without McCain, you have a 50-49 Senate. Pence provides a tie breaker in a case of 49-49-2. Sen. Manchin voted for Sessions, perhaps out of senatorial courtesy. Can see one or more senators doing that here as well. So, probably won't hurt to vote "present."

# posted by

Joe : 11:45 AM

Would Senator Lee be able to vote for himself or must he abstain on that vote?

Some Senators have been nominated for Cabinet posts (like Jeff Sessions last year). On his vote to be Attorney General, he simply voted "present." Does that custom carry over to a Court confirmation?

Only if Lee chooses to do so. Nothing in the Constitution prevents Lee from voting to consent to his own nomination to the Supreme Court.

# posted by

Bart DePalma : 12:00 PM

I discussed this question prior to Sessions's confirmation: http://joshblackman.com/blog/2016/12/09/could-senator-sessions-vote-for-his-own-confirmation/

# posted by

Josh : 12:16 PM

At the moment when he's casting the vote, he's just another Senator, so I don't see why not.

Trump would be pretty stupid to nominate another (Republican!) Senator to any position after what happened with Sessions' seat, though.

# posted by

Brett : 12:29 PM

I didn't know Senator Lee was on the short list, I think he'd be an excellent GOP nominee. That said, whatever the legality, this is an area that demonstrates how important norms and custom are, as it would be in incredibly bad form for him to vote for himself.

# posted by

Mista Whiskas : 12:33 PM

Ok, you've got me confused here; It would indeed be tacky of him to vote for himself if his vote wasn't needed, but I'm failing to see the importance of his not being tacky.

In any event, I expect that reason will prevail, and somebody not a Republican Senator will be nominated. They shouldn't actually have needed to lose Sessions' seat to learn that lesson.

# posted by

Brett : 12:59 PM

It's hard for many partisans to see, but there are virtues and principles of personal dignity and comportment that are more important than personal promotion or electoral victory. Our Founders, whatever else their faults, certainly knew this. I think if one of them voted for themselves like this they'd never be able to show their face in public again.

# posted by

Mista Whiskas : 1:22 PM

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# posted by

Joe : 1:40 PM

Mr. W. thinks Lee would make a good pick but he is doing next to nothing to restrain Trump. This is part of the constitutional vision Lee is promoting. Like not voting for Clinton in '16 when there really are two choices (if one is not in a swing state, this is somewhat less important), there are various reasons why we are where we are at.

The "lesson" one should get from Sessions, given he was an important supporter to have on your team in the Cabinet, might be ensure certain minimal standards in your "safe seat" nominees. But, maybe given the state of the party, that could not be avoided.

Finally, it is not merely "tacky" to be a judge of your own case. It is a basic wrong and has been understood to be one in our system long before the Constitution was written. As is often the case, it is likely easily avoided in this case. Also, I would be surprised he was chosen. For instance, he might actually be totally principled regarding his views (contra an Alito) in ways that would upset various people who have been delegated the duty to pick judges. He's the sort that might actually vote down a national abortion ban on federalism grounds. Another loyal solider is likely to be chosen, but we shall see sooner than later.

# posted by

Joe : 1:41 PM

SPAM and Brett are consistent here with their views on presidential self-pardoning.

But I think Trump is playing his usual head games. Recall the "competition" that Gorsuch dutifully engaged in with another potential nominee. With word out there that Mike Lee is being considered, how could he note against the person (not Lee) that Trum[p ends up nominating. Also, in the meantime prior to Senate action on whoever the nominee is, Sen. Lee will fall in line with whatever Trump needs from the Senate. Does Lee realize this head game? If not, then what does that say about Lee? Is Lee on the judiciary committee, and if so, would it make a difference?

Can we expect a real quickie draft law review article by Gerard?

By the Bybee [expletives deleted, despite Gina], are there any Senate rules on this situation?

# posted by

Shag from Brookline : 1:42 PM

"It's hard for many partisans to see, but there are virtues and principles of personal dignity and comportment that are more important than personal promotion or electoral victory."

Yeah, but I still think this is just tacky. It's true that no man should be the judge in his own case, but this is more like demanding that somebody running for office not vote for themselves, than a judicial proceeding. One vote in 100 is not a "judge".

Tacky, at worst. Far, far worse, actual violations of constitutional rules, are routine in Congress, and you're getting hung up on bad optics?

Anyway, if they're smart, the question won't even come up, because they'll nominate somebody outside the Senate.

# posted by

Brett : 2:08 PM

May we assume that Brett would be untacky and not vote for himself? There is a tad of a difference between a Senate vote of 100 members and, say, a city council election where a candidate votes for him/herself.

I'm like Groucho Marx and wouldn't join a club that would accept me as a member; that's my libertine/libertarian side.

Again, this a Trump head game. Over the years when Lee is introduced, it can be expected that he was not only a Senator but was considered as a potential nominee to SCOTUS. That's good for Lee's personal brand.

Now let's talk about Rudy Giuliani as the nominee.

# posted by

Shag from Brookline : 2:25 PM

By the way, who'll constitute the "they'll" that will do the nominating that Brett refers to?

# posted by

Shag from Brookline : 2:28 PM

A further interesting question: could McConnell use Senate rules prohibiting saying negative things about Senate colleagues to quash any meaningful inquiry from Democrats into Lee's jurisprudential views/history, as we saw with Sen. Warren and the Sessions/AG confirmation process?

# posted by

Bill Sallak : 4:41 PM

A Senator should not vote on his own confirmation to the Supreme Court because he faces a direct financial conflict of interest. This is different from a Senator voting for self-confirmation for a cabinet position. Senators, cabinet members, and Justices have similar pay scales, but the present value of a guaranteed lifetime position, with retirement at full annual salary, is much greater than the present value of what's left in a four or six year term. The

# posted by

arthur : 7:25 PM

That's a fair point. Any Senator would get a $32000 raise by being appointed to the Court. And while the salary of a Senator depends on re-election, a Justice's does not.

# posted by

Mark Field : 7:57 PM

The pay issue is important but don't think it is determinate.

And, we have seen how fiscally beneficial Cabinet positions have been in multiple cases, if this is what it turns on.

# posted by

Joe : 9:00 PM