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.