by Robin Bradley Kar, Walter V. Schaefer Visiting Professor of Law at University and Professor of Law & Philosophy, University of Illinois College of Law, and Jason Mazzone, Professor, Lynn H. Murray Faculty Scholar in Law Co-Director, Program in Constitutional Theory, History, and Law, University of Illinois College of Law
Much has been written about the Senate Republicans’ current plan to prevent President Obama from appointing a replacement for Justice Scalia and to leave the choice of a new justice to the next president. Many commentators have suggested that there is something wrong with this plan, but it has thus far been difficult to pinpoint the precise problem. In our recent study, The Garland Affair, published online in the New York University Law Review, we believe we have pinpointed the problem. We thank ACS for inviting us to describe our study and why we believe Senate Republicans should change course in order to avoid a number of pragmatic and constitutional risks with their current plan.
First a brief discussion of where things stood prior to our study. Before publication of The Garland Affair, some opponents of the Republicans plan suggested that it was unprecedented for the Senate to block a President from making an appointment to the Supreme Court. Senate Republicans claimed that to the contrary no prior president has made an election-year appointment to the Supreme Court in the last 80 years—thus implying that it is President Obama’s attempt to fill the Scalia vacancy that contravenes historical precedent; defenders of the Republican plan also pointed to scattered cases where the Senate, resisting particular nominees to the Court, had succeeded in preventing a president from filling a vacancy. Given competing accounts of the historical record, it was difficult to determine precisely where precedent lay.
Turning to constitutional matters, some opponents of the Republican plan have argued that the Appointments Clause imposes a general duty upon the Senate to proceed to a vote on all Supreme Court nominations. This claim has, however, met with resistance from certain constitutional scholars on the ground that the Senate’s role to provide advice and consent is completely discretionary and it is under no duty to act in any particular way.