This is of interest to me from a comparative perspective. I’m by no means an expert on the current practices in the American system of government. My analytics tell me that Parliamentum does have an appreciable American readership, so I hope that some of my American readers will comment on this post and correct me if I’m wrong about anything or have overlooked something.

In response to the death of Justice Antonin Scalia, former Republican Congressman and Speaker of the House Newt Gingrich, in an interview with Fox News on 14 February 2016, spoke of precedents and something akin to constitutional conventions in the American system and argued that the President is subject to some kind of caretaker convention in the entire last year of his presidency — and not merely in the lame-duck period between, in this case, November 2016 and 20 January 2017 — that restricts his authority to nominate justices to the Supreme Court of the United States.

Gingrich said:

“I think it’s pretty clear that the historical precedents are that in the last year of a president’s term, there’s a bias towards the next president with the votes of the American people picking that person. [Senate Majority Leader] Mitch McConnell has to do two things: refuse to hold hearings and make sure that the Senate stays in pro forma session so that the president can’t make an interim appointment.”

What struck me most about Gingrich’s argument was his suggestion that the President, in his last year in office, should not make decisions that would restrict the freedom of action of his successor — because this same principle underpins the caretaker convention in parliamentary jurisdictions. The Privy Council Office’s Guidelines on the caretaker convention, for instance, states that while the caretaker convention is operable in Canada, the ministry should ensure that its decisions “are reversible by a new government without undue cost or disruption.”[1]

I’m skeptical of the principle underpinning Gingrich’s claim that there exists some kind of convention restricting the executive government of the United States. The Senate could of course refuse to confirm nominees. But the Senate’s refusal to confirm nominees is a political decision to exercise its constitutional authority in Article I in a manner that checks against the President’s authority under Article II to nominate judges; it is therefore an altogether different thing from asserting that some kind of convention restricts the President’s authority under Article II to recommend nominees to the Senate in the first place.

If there is a caretaker convention in the United States, it ought to apply only to the true lame-duck period between the presidential election in the first week of November and January 20th of the following year, when the outcome of the election is known and during this transition period when the President-elect is preparing himself and his incoming administration to take office. This maxim would also accord with how the caretaker convention operates in parliamentary countries like Canada. The caretaker convention certainly applies during the writ and after the writ until the day on which the incoming ministry takes office. But within the Commonwealth countries, for instance, there is debate and there are different precedents on whether the caretaker convention applies before the writ.

Ultimately, the Gingrich Doctrine  — that the president’s executive authority is restricted during the last year of his presidency — most resembles New Zealand’s extensive (and in my view, absurd) application of the caretaker convention with respect to appointments to the pre-writ period fully three months before dissolution.[2] In his recent article in Politico, American historian Josh Zeitz refers to Gingrich’s argument as “The Thurmond Rule,” and he easily debunks it:

Today’s Republicans consider as binding the so-called “Thurmond Rule”—a vague, non-statutory, largely undocumented position associated with exactly one former United States senator (Strom Thurmond), whom they claim opposed Fortas’ nomination on the grounds that LBJ was a lame-duck president. In fact, presidents don’t become lame ducks until their successors are chosen, and in 1968, Thurmond participated wholeheartedly in the nominee’s confirmation process.

I’d be very reticient indeed of citing Strom Thurmond as an authority on anything. That said, it’s interesting that Gingrich is talking of what would essentially be a political enforceable convention, because these are features normally associated with the Westminster system operating on fully or partially uncodified constitutions. Nick MacDonald and I posited in our article on officializing and codifying constitutional conventions from 2012 that in the United States, the only enforcement mechanism to check against a president’s violation of a convention is passing a constitutional amendment.[3] An example of this method occurred in 1951 with the passage of the 22nd Amendment, which imposed term limits on the President of the United States. George Washington, like Cincinnatus, had established a convention of relinquishing power voluntarily such that presidents serve only two terms; all presidents recognized and respected this convention until Franklin Delano Roosevelt broke it by running for a third term in 1940. (Theodore Roosevelt tried to buck the trend when he ran for a third, non-consecutive term in 1912, but the Bull Moose failed). To invoke R. Macgregor Dawson’s litmus test on exercising the reserve powers, I would say that the Second World War amount to an “exceptional circumstance” that warranted F.D. Roosevelt’s exceptional response.

In any event, I would argue that only a constitutional amendment could likewise limit the President’s executive authority under Article II to nominate judges during his last year in office; if the Senate so desires, it could block anyone whom President Obama nominates, but the Senate’s political decision to block a nominee does not derogate from the president’s authority under Article II to nominate someone in the first place.

Similar Posts:

• Parliamentarism vs Presidentialism
• Caretaker Convention

[1] Canada. Privy Council Office, Guidelines on the Conduct of Ministers, Secretaries of State, Exempt Staff and Public Servants During An Election. (Ottawa: Her Majesty the Queen in Right of Canada, 2008): 1.
[2] New Zealand. Cabinet Office, Department of the Prime Minister and Cabinet, Cabinet Manual. (Wellington, Her Majesty the Queen in Right of New Zealand, 2008): 76-77.
[3] James W.J. Bowden and Nicholas A. MacDonald, “Writing the Unwritten: The Officialization of Constitutional Conventions in Canada, the United Kingdom, Australia, and New Zealand,” The Journal of Parliamentary and Political Law 6, no 2 (August 2012): 399.