Constitutional Conventions, the Judicial Separation of Powers, and Justice Scalia's Replacement

Neil Siegel

Curtis Bradley and Neil Siegel

The timing of the death of Justice Antonin Scalia is prompting much discussion—for example, here, here, here, and here—about whether there are “constitutional conventions” relevant to efforts to fill his seat—or to oppose filling his seat—before the next presidential election.  As one of us noted in a previous post, a major theme of a new article we have written is that such conventions may be relevant to separation of powers controversies where the subject matter concerns the courts—what we call the “judicial separation of powers.”

Our article discusses the general concept of constitutional conventions as developed by British (and, more broadly, Commonwealth) theorists, as well as specific issues surrounding appointments to the Supreme Court.  Conventions do not possess the status of mere politics, partisanship, or policy preferences.  Instead, conventions offer normative guidance to government officials about how they are permitted to exercise their political discretion; they are obligatory matters of political morality, despite not being legally binding.

Constitutional conventions help the constitutional system function by keeping partisanship within reasonable bounds.  For vacancies on the Supreme Court, conventions about appointment and confirmation help ensure that the Court can continue to execute its responsibilities effectively.  Although the Constitution does not mandate nine seats, the Court has had that number of seats since shortly after the Civil War, and having an odd number of Justices will often be essential to resolving issues of nationwide importance.  When Justices have retired at the end of a Term, there arguably has been a convention of working hard to get a new Justice in place by the start of the next Term—again, because of the need for the Court to function effectively.

In the case of the vacancy that now exists on the Court, there are difficult and interesting issues concerning: (1) whether there are applicable conventions regarding the conduct of the President and the Senate; (2) what those conventions entail; and (3) the implications of any such conventions.  Tierney Sneed reports that Senate Republicans would have to reach back to the mid-1800s to find an instance in which the Senate blocked a nominee for reasons having nothing to do with the nominee himself—that is, just in order to obstruct the President.  Moreover, over the course of American history—from 1796 to 1988—at least 14 Justices have been confirmed during election years.  And as Emily Bazelon notes, under somewhat analogous circumstances a Senate controlled by the opposing party confirmed Reagan’s appointment of Anthony Kennedy in February 1988, when Reagan had about 14 months left in office.

Although we have not independently researched the relevant historical record, there appear to be few if any instances during the past century and a half in which the Senate has blocked nominees to the Court based simply on opposition to allowing the President an appointment.  That lack of past practice might reflect, at least in part, normative concerns about the impact of obstruction on the proper functioning of the constitutional system.

On the other hand, the lack of precedent might merely reflect the fact that there are very few modern instances in which the issue arose.  For example, Bazelon notes that “[o]nly three Supreme Court justices have died in office in more than 60 years.  Most have controlled the timing of their retirements, and have chosen to leave the bench when the party that selected them holds the presidency and the Senate.”

Moreover, in recent times some of the norms concerning Court appointments may have shifted—for example, as a result of President Reagan’s failed nomination of Judge Robert Bork.  Bork was Reagan’s first choice and was nominated days after Justice Powell retired in June 1987, when Reagan had more than a year and a half left in his presidential term; Kennedy was his third choice and was nominated six months later, after the Senate refused to confirm Bork and after Reagan’s second nominee, Douglas Ginsburg, dropped out of consideration. 

Even if there is a relevant convention relating to the replacement of Justice Scalia on the Court, it may be difficult to discern the precise responsibilities entailed by such a convention for both the President and the Senate in these circumstances.  Although Obama can reasonably claim that the ability to nominate a new Justice falls within his four-year electoral mandate, Senate Republicans can similarly claim that ensuring that the nominee is politically acceptable falls within their electoral mandate.  Thus, perhaps Obama has some duty to nominate someone plausibly acceptable to Republicans.

On the other hand, even if there is no convention requiring the Senate to confirm any particular nominee, there might be a convention precluding it from repeatedly voting down (or refusing to consider) a series of nominees, especially if it is clear that the President is attempting to nominate a relative moderate.  (The confirmation of Kennedy is arguably consistent with such a convention.)

Whatever the best answers to these and related questions, it is noteworthy—and revealing—that much of the public discussion in the immediate aftermath of Justice Scalia’s passing concerns constitutional conventions of proper conduct by President Obama and Senate Republicans.  The constitutional text and the original meaning of the constitutional text, both of which Justice Scalia often championed, seem to be playing less of a role.


Posted 4:33 PM by Neil Siegel [link]