Private: Pinpointing the Problem with the Garland Snub

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.

This is where The Garland Affair comes in. In our study, we take a deep dive into the entire history of Supreme Court appointments. We show that never once has the Senate deliberately transferred a president’s Supreme Court appointment powers to a successor absent contemporaneous questions about the status of the president as the most recently elected president. No such questions exist with respect to President Obama. Hence, the Senate Republicans’ current plan marks a much greater departure from more than two centuries of historical tradition than has thus far been recognized.

More specifically, we show that there have been have been 103 prior cases, going all the way back to the earliest days of the Republic, in which an elected president faced an actual vacancy on the Supreme Court and began an appointment process prior to the election of a successor. In all 103 cases, the president was able to both nominate and appoint a replacement justice, by and with the advice and consent of the Senate—even if the president did not secure appointment of his first choice. This is true even of all eight such cases where the nomination process began during an election year.

There have, by contrast, been only six prior cases in which the Senate pursued a course of action that—like the current Republican plan not to consider any Obama nominee—deliberately sought to divest a sitting president of his Supreme Court appointment powers and transfer them to a successor. In all six such cases, there were, however, contemporaneous questions, not present with respect to Obama, about the status of the nominating president as the most recently elected president. The six cases where nominations failed were all cases where the president either (a) obtained the office by succession rather than election very early in the Republic (i.e., when there were still contemporaneous questions about the powers that such presidents had under the Constitution) or (b) began the nomination process after the election of a successor.

We conclude that the historical rule that best accounts for the entire history of Supreme Court appointments is the following:

Although the Senate has the constitutional power to provide advice and consent on particular Supreme Court nominees (and hence to reject or resist individual nominees on the merits), the Senate may only deliberately transfer one president’s Supreme Court appointment powers to an unknown successor—as Senate Republicans are currently attempting to do with their plan—if there are contemporaneous questions about the status of the nominating President as the most recently elected President.

Two points ultimately emerge. First, even if past Senates have only been acting out of mere courtesy to past presidents, this tradition gives rise to an internal senatorial norm of fair dealing. In our essay, we explain why breaching this norm would generate grave pragmatic costs to the impartiality and appearance of impartiality of the judiciary; to well-settled forms of democratic deliberation as they relate to Supreme Court appointments; and to the functioning of our constitutional form of governance.

Second, and in addition, historical traditions like these can ripen into constitutional rules that inform the best interpretation of constitutional text and structure.  See, e.g., NLRB v. Noel Canning, 134 S. Ct. 2550, 2594 (2014) (Scalia, J. concurring, joined by Thomas, Alito & Roberts, JJ.) (“Of course, where a governmental practice has been open, widespread, and unchallenged since the early days of the Republic, the practice should guide our interpretation of an ambiguous constitutional provision.”); NFIB v. Sebelius, 132 S. Ct. 2566, 2586 (2012) (Roberts, C.J.) (“[S]ometimes ‘the most telling indication of [a] severe constitutional problem . . . is the lack of historical precedent’ for Congress’s action.”).

The Appointments Clause explicitly gives Congress the power to divest the president of some appointment powers relating to “inferior officers” and to “vest them as they think proper, in the President alone, in the Courts of Law, or in the Heads of Department.” On the other hand, the Appointments Clause does not give Congress (or any other body) the same divestment power with respect to Supreme Court appointments. So there are two interpretive possibilities here. Either the Senate’s power to provide “advice and consent” with respect to Supreme Court nominees includes a further unstated power to deliberately divest presidents of their Supreme Court appointment powers (a power which Congress nevertheless explicitly lacks and no other body is explicitly granted when it comes to Supreme Court appointments). Or it doesn’t. Where text is ambiguous, historical practice can provide needed clarification. Our study suggests that historical precedent would resolve any textual ambiguity in favor of a rule against divestment of presidents’ Supreme Court appointment powers except in the highly unusual circumstances where there are contemporaneous questions about the status of the nominating president as the most recently elected President.

The deeper point, though, is that first principles matter. Because the federal government is one of limited and enumerated powers, the real question is: From where precisely does the Senate get the unprecedented power that it is currently asserting to completely and deliberately extinguish President Obama’s Supreme Court appointment powers? With respect to non-Supreme Court appointments, either text or history might provide a hook—as we explain in our essay. But neither text nor history point to any such senatorial authority with respect to Supreme Court appointments.

Nonetheless, an argument that the Republican plan violates the Constitution is no slam-dunk.  We think instead the issue raises a “hard” constitutional question—i.e., one that cannot be definitively settled either way based on the available historical and legal evidence. But this fact cuts both ways. It suggests that it would be reasonable to wonder whether constitutional ripening has taken place. But it also explains why it would be irresponsible for Republican Senators simply to dismiss any risk of a constitutional violation outright.  In our essay, we therefore conclude:

Fortunately, there remains an easy way to avoid the pragmatic and constitutional risks that loom large. The Senate can simply follow the path that its predecessors have taken in every analogous situation in the past and proceed to full Senate consideration of President Obama’s nominee (or nominees) to fill the Supreme Court vacancy. The Senate can similarly exercise its undisputed power to confirm, reject or resist Obama’s particular Supreme Court nominees on the merits. Any further efforts to deliberately and completely divest President Obama of his constitutionally-designated power to appoint Justices to the Supreme Court should, however, be abandoned.

We welcome responses to The Garland Affair and further discussion of these issues. The stakes extend beyond one president and one nominee: At issue is the rule of law itself. 

Note: For those who are interested in reading more, there is coverage in The New York Times (“Study Calls Snub of Obama’s Supreme Court Pick Unprecedented”) and the Huffington Post (“The Senate Republicans, Merrick Garland, and the Lessons of History”). Blogger Ed Whelan has also posted a six-part critique of our essay in the National Review (“Kar/Mazzone on Senate Duty on Supreme Court Vacancies—Part 6”—with links to earlier posts). Those critiques focus primarily on the non-constitutional aspects of our argument. Our response, also published in the National Review, is here.

At The Originalism Blog, Professor Michael Ramsey has addressed some of the constitutional dimensions of our study. We reply to him here.