Wednesday, July 13, 2016

Note on the constitutional controversy over Justice Scalia’s replacement


As noted previously, I'm publishing a few discussion notes from the forthcoming supplement to the Brest Levinson casebook, which I prepare every summer following the end of the Supreme Court Term.

This year I decided to write a short note for students taking them through the issues in the controversy over the appointment of Justice Scalia's successor.  The central purpose is to get them to think about the difference between (a) the history of political practice; (b) tradition; (c) convention;  (d) legal obligations; and (e) judicially enforceable legal obligations.

I would be delighted if Judge Garland--a outstanding jurist--were elevated to the Supreme Court. Nevertheless, I do not think that Senate Republicans have a constitutional or legal obligation to consider him.  (And of course, I very much doubt that there is a justiciable case or controversy that would allow the President to enforce that obligation, even if it existed).

At the same time, I think that Senate Republicans' argument that they are following a different legal convention--that there is a longstanding tradition of avoiding Supreme Court appointments in election years--strikes me as ad hoc and not particularly convincing.

Thus, this is a situation-- as often happens-- in which the President and the Senate disagree about what to do, and constitutional law does not require a particular outcome.

Nevertheless, Senate Republicans' refusal to even hold hearings for Judge Garland is a genuinely worrisome event in American politics. It suggests that bipartisan norms of cooperation have all but broken down. Every time one imagines that political polarization has reached its peak, it finds ever new ways to increase.

I have optimistically suggested that the two major political parties are about to begin a long process of depolarization. Perhaps the 2016 election, for all of its absurdity, marks the start of that process, as the Republican and Democratic coalitions slowly begin to change. But even if I am right about this, it will take some time, and in the meantime we are feeling the effects of the powerful polarization we currently have.  Moreover, Mark Graber's work suggests that the leading edge of depolarization may not be our current class of political elites, who are among the most polarized players in the American political system.

Right now, Republican Senators are stuck between a rock and a hard place. They have few good reasons to cooperate with President Obama. As a result, we should probably not expect them to cooperate until after the election. After the election, of course, things might look different. Despite the assertion of principled arguments for not considering anyone until January 2017, if Republicans lose both the White House and the Senate in the 2016 election, the Senate leadership might well consider Garland during the lame duck session--that is, if President Obama has not withdrawn the nomination. Garland is exactly the kind of nominee that an opposition party would have hoped for--and confirmed--in pre-polarized times.

The casebook note appears below the fold:

Note: The constitutional controversy over Justice Scalia’s replacement

Justice Antonin Scalia died on February 13, 2016. Within an hour of confirmation of Scalia's death, Senate Majority Leader Mitch McConnell stated that the Senate would not confirm a replacement for Supreme Court Justice Antonin Scalia until after the 2016 election: “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.”[1] Republican leaders in the Senate quickly confirmed that there would be no confirmation hearings or vote on any nominee President Obama chose to replace Scalia. Nor would the Senators even meet with any Obama nominee as a courtesy, as they usually did. On February 23rd, 2016 the Chairman of the Senate Judiciary Committee, Charles Grassley, and all of the Republican members of the committee, signed a letter stating that “based on constitutional principle, and born of a necessity to protect the will of the American people, this Committee will not hold any hearings on any Supreme Court nominee until our next President is sworn in on January 20, 2017.”[2]

President Obama responded by stating that he would make a nomination to replace Justice Scalia, and that the Senate had a constitutional duty to consider the nomination. Accordingly, on March 16, 2016, President Obama nominated Judge Merrick Garland, the Chief Judge of the U.S. Court of Appeals for the D.C. Circuit, to the Supreme Court. At 63, Garland is older than most recent Supreme Court nominees, and is generally considered relatively moderate; President Obama may have believed these features might attract Republican support. Even so, Senate Republicans reiterated their refusal to vote on or hold hearings on the nomination. Eventually a few Republican Senators agreed to meet with Garland as a courtesy, but stated their opposition to considering his nomination on the merits.

It was not difficult to discover the reason for this behavior. Before Scalia's death, the Supreme Court consisted of five conservative appointees, all appointed by Republicans, and four liberal appointees, all appointed by Democrats. One of the Republicans, Justice Anthony Kennedy occasionally voted with the liberal Justices, so that the most controversial cases were often decided by 5-4 margins.  Replacing Justice Scalia with a new Justice appointed by President Obama would likely result in a liberal majority on the Supreme Court for the first time since 1969. This would shift the median Justice from Anthony Kennedy, who usually, but not always, voted with his fellow conservatives on hotly contested issues, to the new Justice, or possibly Justice Stephen Breyer, who is widely regarded as the most moderate of the liberal Justices.  Observers of the Court predicted that this shift might potentially have very significant effects on Supreme Court decisions and constitutional doctrine.

In the October 2015 Term, the Supreme Court had granted certiorari in a number of controversial and important cases involving affirmative action, voting rights, abortion, immigration, and the associational rights of non-union employees. Many observers hoped (or feared) that the results of these cases would shift Supreme Court doctrine further to the right. Now, with Justice Scalia's death, the Supreme Court might deadlock 4 to 4 on some or all of these cases. The result would be that the lower court's ruling would be affirmed, with no opinion from the Supreme Court and thus no nationwide effect on existing precedents.

For example, a month after Scalia’s death, the Supreme Court deadlocked 4 to 4 in Frederichs v. California Teachers Association. Frederichs had been brought as part of a litigation campaign by political opponents of public sector unions, who sought to overturn a 1977 precedent, Abood v. Detroit Board of Education, 431 U.S. 209 (1977). Overturning Abood would have made it unconstitutional for public sector unions to collect agency shop fees from non-union employees, and might have significantly weakened their political power. The Court's 4-4 decision left Abood, and the lower court decision applying it, intact.

Many of the most important cases decided in the October 2015 Term have been directly or indirectly affected by Justice Scalia's death, as the Justices strove to reach compromises that would allow them to issue opinions instead of deadlocking.  (In some cases, like United States v. Texas, the 4-4 deadlock had significant legal consequences, as discussed infra.) Justice Scalia's death also affected the Supreme Court's choice of cases for the next Term's docket. The Court now had incentives not to take too many high profile cases that might deadlock 4-4 along conservative/liberal lines.

The Republicans' decision to delay consideration of Scalia's replacement had important strategic elements. By waiting until January 2017 to consider a new Supreme Court nominee, Senate Republicans might prevent a new liberal majority from rendering decisions not only in the October 2015 Term, but also throughout most of the next Supreme Court Term, which begins in October 2016. If confirmation hearings took several months, a new Justice might not be installed until April or May of 2017, making it too late for the new Justice to participate in any cases accepted for the October 2016 term. On the other hand, if the Republicans won the White House in 2017, they could attempt to speed up the process and install a new Justice as soon as possible, allowing the Justice to vote on some of the accepted cases.

Moreover, the policy of delay gave Republicans an additional option. Although the Senate Judiciary Committee promised that it would not consider any nominee until January 2017, Senate Republicans might change their minds if the Democrats won both the White House and control of the Senate in the November 2016 elections. In that case, Senate Republicans might decide that Judge Garland, a 63 year old moderate liberal, was a safer choice than a younger and more liberal Justice appointed by the next Democratic President. They could then vote to confirm Garland during the lame duck session of Congress (beginning in November 2016) while they still controlled a majority in the Senate. Although this would require them to renege on their principled pledge, this would not be the first time this had happened in American politics.


Is the Senate's refusal to consider any Supreme Court nomination by President Obama constitutional?  Does it matter that the nomination is to the Supreme Court rather than to a lower federal court?

1. Arguments from text. The text of the Constitution does not clearly forbid the Republican strategy. Article II, section 2 states that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.” Note that the text does not distinguish between Supreme Court nominations and nominations of other Officers of the United States, which include lower court judges.

Does the word “shall” in Article II, section 2 mean “is required to” or does the use of the word “shall” merely state the process by which appointments occur?  If “shall” means “is required to,” it would suggest that the President is constitutionally required to nominate someone for every Ambassadorship, and for every open position in his administration and in the federal judiciary. Does the fact that the President “shall appoint” with “the Advice and Consent of the Senate” mean that the Senate is required to hold hearings and vote on anyone the president nominates? Suppose that the Senate's advice is: “we advise you not to appoint anyone to this position”?

2. Arguments from structure. Are there structural reasons to require the Senate to consider Supreme Court nominations?  Although there do not have to be lower federal courts, Article III contemplates that there has to be a Supreme Court. Does the Senate’s refusal impede the functioning of the federal courts?

One reason might be that the Court is working at less than full strength. But does the Supreme Court have to have nine members? It has had a different number in the past. Note that much of the concern about the Court’s ability to do its job appears to be premised on the fact that the Court currently has 4 conservative and 4 liberal members, who often disagree. But if the balance were 5-3, the Court would not deadlock as often. Should a structural argument turn on the current composition of the Justices, or should it apply regardless of the current mix of personnel?

3. Arguments from past practice. A third approach is to look at the past practice of the representative branches of government.  What kinds of precedents are there, and are they both relevant and legally binding?

Presidents usually have incentives to nominate as many people to the Supreme Court as they can.  Therefore, it is not surprising that in the past, Presidents have often nominated Supreme Court justices in their last year in office, and even during the lame duck session following an election in which their party lost. (That is how John Marshall became Chief Justice, for example.)

What about the Senate’s practices? Michael Gerhardt argues that there is little evidence of a practice of “shut[ing] down the Supreme Court confirmation process in presidential election years.” He notes that the Senate Judiciary Committee had argued that “Not since 1932 has the Senate confirmed in a presidential election year a Supreme Court nominee to a vacancy arising in that year. And it is necessary to go even further back—to 1888—in order to find an election-year nominee who was nominated and confirmed under divided government, as we have now.”[3] Gerhardt responds that “[t]his is true, but it hardly constitutes a tradition. Indeed, the Senate confirmed Frank Murphy in January 1940 and Anthony Kennedy in 1988, while it confirmed William Brennan in 1957, after Eisenhower had named him as a recess appointment and nominee to the Court in 1956.”[4]

In 1968, President Johnson nominated Associate Justice Abe Fortas to replace Chief Justice Earl Warren.  He then nominated Homer Thornberry to take Fortas’s seat if Fortas were confirmed.  However, neither was confirmed: Fortas withdrew his nomination before the 1968 election, and Thornberry was never confirmed.  This example, Gerhardt explains, does not support a practice of refusing to consider a President’s nominees at all.  Quite the contrary: “the Senate actually held hearings – twenty-two, in fact – for the two nominations and Fortas was thwarted by a successful filibuster, which was based not on the fact it was an election year, but rather that Fortas, who had been confirmed as an Associate Justice a few years before, had committed several serious ethical breaches while on the Court.”[5]

Finally, Gerhardt considers the argument that the Senate has begun to slow down consideration of lower court appointments in election years. Even if this is so, he argues, “it hasn’t translated into the realm of Supreme Court appointments.”[6]  Rather, Gerhardt argues, the Senate almost always confirms Supreme Court nominees—and it certainly doesn’t refuse to give them even a hearing. He quotes Geoffrey Stone of the University of Chicago Law School, who points out that “even when the Senate was controlled by the opposing party, in the last 60 years every one of the eight nominees who was perceived to be both qualified and reasonably moderate was easily confirmed.”[7] Gerhardt concludes that there is “no historical support for the claim that the Senate has a tradition of shutting down the Supreme Court appointment process in presidential election years. The tradition is the opposite, for the Senate to consider Supreme Court nominations, no matter the timing, and actually to confirm nominees when they are moderate and well qualified.”[8]

Gerhardt argues that historical practice does not support the Senate Republicans’ claim that the Senate has a tradition of shutting down the Supreme Court appointment process in presidential years. Assuming this is correct, what does it establish? Even if no political convention supports the Republicans’ gambit, does the history of past practice establish a political convention that is legally binding and that prohibits what they are doing?

4. Past practice and legal obligation. Here it might be useful to distinguish (a) regularities of practice from (b) traditions and (c) conventions, and all three of these from (d) legal obligations.  We might be able to identify certain regularities of behavior from the study of history, but that does not mean that people understood themselves to have a normative obligation to others to behave in a certain way. For example, every morning for the past five years, you might brush your teeth before you brush your hair, but it is probably not because you feel a normative obligation to others.  There might be prudential reasons why people always tend to act in the same way—for example, in markets usually people try to buy low and sell high—but that is not because they owe an obligation to others to do so.

Some practices within a social group repeated long enough may become a tradition, which later members of the social group self-consciously accept as a tradition that should guide their behavior. People might argue, for example, that they should act in certain ways because their predecessors have always (or almost always) done things that way. They may even come up with justifications after the fact for retaining practices that others fell into for very different reasons. But even if a tradition exists, it does not necessarily create a binding legal obligation, much less a constitutional obligation.  People often break with traditions, or alter or amend traditions, especially in politics.

Political conventions arise out of political practice because they helpfully establish mutual expectations, coordinate political action and lower the costs of participating in politics.  All parties abide by these conventions (or usually abide by them) because they fear that departing from them will harm them, either in the short run or the long run.  In that case, the convention is self-enforcing for prudential reasons. But unless the convention is also legally binding, parties are legally free to depart from it if they are willing to accept the risk that the other party will retaliate. (Note that traditions may also be conventions, but they need not be.  The tradition of wearing green on St. Patrick’s Day, or singing carols at Christmas, for example, does not solve important coordination problems—that is, other than solving the problem of how to celebrate the holiday).

Arguments from political convention or tradition are a modality of constitutional argument. These arguments gloss the constitutional text by claiming that a particular political tradition or convention has become constitutionally obligatory.  Opponents may disagree, arguing that past practice has not created such an obligation.

What is necessary for a tradition or a convention to become part of the Constitution, and therefore legally binding? Do all of the affected parties have to accept it?  Is it enough that one party merely acquiesces for a period of time? Note that when we are speaking of inter-branch conventions, the people who begin to form a convention may not be the same people that are confronted with it later on. Why should earlier Presidents or Congresses be able to bind later ones?

What is the relationship between arguments from tradition or convention and other modalities of argument?  For example, can tradition or convention overcome a text that is otherwise clear? (See the discussion in Noel Canning v. NLRB, in Chapter 6, infra.)

5. Judicial enforcement. Note that whether or not a tradition or convention becomes a legal obligation, it may not be judicially enforceable. There are many constitutional questions on which courts have not ruled and for institutional reasons are unlikely to do so.  Examples include controversies involving foreign affairs, ratification of constitutional amendments, and the judicial appointments process. In these cases, members of the representative branches of government debate their constitutional prerogatives and obligations, and act accordingly.  It may be very difficult to tell whether and how an obligation is binding, because different actors will disagree, or they may interpret the rules quite differently.

When courts are reticent to play a role in enforcing constitutional obligations, how if at all does the Constitution matter? Are claims that the President, or the members of the Senate, are violating the Constitution enforced by the voters rather than the courts? (On the electoral consequences of President Roosevelt’s Court-packing plan, see p. 632.[9])  Note, however, that the voters may care more about the current state of the economy than about the niceties of constitutional interpretation.

6. Is there a political convention that requires the Senate to hold confirmation hearings? Robin Bradley Kar and Jason Mazzone assert that Senate Republican leaders should reconsider their current plan because there is a very serious risk that historical practice “has ripened into a constitutional rule that informs the best interpretation of constitutional text and structure.”  Robin Bradley Kar & Jason Mazzone, The Garland Affair: What History and the Constitution Really Say About President Obama’s Powers to Appoint a Replacement for Justice Scalia, 91 New York University Law Review Online 53 (2016).  Although they stop short of asserting that Senate Republicans have clearly violated the Constitution, they suggest that Republicans desist in order to avoid “difficult and unprecedented constitutional issues relating to separation of powers” as well as “pragmatic risks” to the constitutional system that might occur if the parties refuse to cooperate in the appointments process in the future.

Kar and Mazzone argue that “there have been 103 prior cases in which—as in the case of Obama’s nomination of Garland—an elected President nominated someone to fill an actual Supreme Court vacancy and began the nomination process prior to the election of a successor. In all 103 cases, which go back all the way to the earliest days of the Republic, the sitting President was able to both nominate and appoint a replacement Justice—by and with the advice and consent of the Senate, and regardless of the senatorial rules and procedures in place.”

The only exceptions, Kar and Mazzone explain, are situations in which the President made the appointment after the election of the next President, or the President who made the appointment had never been elected President but took office because of the death of the previous President. In the nineteenth century, there was debate about whether such accidental presidents should enjoy all of the powers of an elected president. (This question has been resolved by the Twenty-Fifth Amendment.) Kar and Mazzone argue that Abe Fortas’s failed nomination in 1968 is not an exception to the rule. The Senate didn’t refuse to consider President Johnson’s proposed appointment of Fortas. It held hearings, but Senators objected to Fortas because, among other things, his reputation had been damaged by scandal.

Kar and Mazzone’s argument, in short, is that Senate Republicans are improperly treating Obama as if he is not a fully legitimate President. Because he is fully legitimate—he has, after all, been elected not once, but twice— Senate Republicans have no right to refuse to consider his nominations to the Supreme Court when a Supreme Court vacancy occurs. The fact that the vacancy falls within an election year in no way undermines Obama's democratic authority to perform the normal functions of his office; he is elected for a full term of four years expiring in January 2017. (If one wants to play that game, one might argue, along similar lines, that Senate Judiciary Chair Charles Grassley lacks democratic authority to hinder Obama because he is in the sixth year of his current Senate term.)

Suppose that Kar and Mazzone’s history is correct. What, exactly, does it prove? They might merely be pointing to a regularity of practice. One reason to think that they have not identified a political convention—much less one that is legally binding—is that their formula is rather complicated, and they seem to have been the first to come up with it. Political conventions, one might think, are those that are generally understood and expected by all of the relevant players in politics.  Perhaps there is a convention about the Senate’s role that most actors understand or assume, but Kar and Mazzone have incorrectly described it.  For example, there might well be a convention that the Senate will consider the President’s nominees unless it offers good reasons to the contrary.  But if that is the relevant convention, the Senate would insist that it has not violated it.

Moreover, even if Kar and Mazzone have identified a tradition or a convention, how do we know that it is legally enforceable, rather than just a product of prudence? Perhaps the Senate didn’t have reasons to press the issue until now. (Compare the examples of recess appointments or the President’s war powers.)  Given the country’s political polarization and the increasing power of the Supreme Court, the reasons that justified the convention may have changed.  We are now seeing the emergence of a new set of behaviors better suited for a different political environment. Senators may have very good reasons to resist confirming a new Justice, who will sit for decades, if they have plausible reasons to delay in the hopes that their party will win the next presidential election.

7. The argument from political dysfunction. To be sure, the Senate’s refusal to consider any nominations to the Supreme Court, no matter how qualified, is a particularly worrisome example of the increasing polarization of American politics. As noted above, one purpose of conventions is to help coordinate political action and prevent political dysfunction.  Accordingly, one might object to the Senate’s position because it is yet another example of an accelerating process that makes bi-partisan cooperation more difficult in the future. Even if the Supreme Court is not especially damaged by the Senate’s actions, in the long run the national political process will be damaged because this kind of behavior helps accelerate the breakdown of a functioning government.  In a presidential system with separation of powers, effective governance requires cooperation from both of the country’s major political parties. If that cooperation breaks down, governance becomes increasingly difficult and the country is unable to respond to crises and long-term threats.

Does it follow from this argument that the Senate’s action might have been acceptable if the other features of partisan polarization were not present? Or is the argument that the Senate would not have felt authorized to act in this way if other norms of bipartisan cooperation had not already broken down?

8. The costs (and benefits) of intransigence. What are the dangers of a strategy of intransigence on this particular issue? It is possible that if the Republicans win the White House, Democrats will find various ways to retaliate, because they feel they were cheated out of a Supreme Court appointment. This might lead to even further escalations and a serious breakdown of the appointments process and of the political process generally.  Does the risk that this might happen mean that Republicans should change their minds? Or does it mean only that they have to weigh the risks of escalation against the possible benefits of their current strategy?

Note that if Senate Republicans do change their minds, they might face retaliation from the more radical element of their political base, which despises President Obama and considers the appointment of conservative judges to be an important priority. Senate Republicans may decide that the political survival of the Republican majority in the Senate in the short run is more important than the risk of retaliation down the road.

If this adequately describes the Republican calculus, the political convention Kar and Mazzone claim to have identified is no longer self-enforcing. Norms that are not self-enforcing will have to be enforced by some third party—for example, by the courts. Do you believe that this particular controversy is justiciable?

[1] Burgess Everett and Glenn Thrush, McConnell throws down the gauntlet: No Scalia replacement under Obama, Politico, February 13, 2016,
[2] Judiciary Committee Letter Opposing Supreme Court Hearings, New York Times, February 23, 2016,
[3] Judiciary Committee Letter Opposing Supreme Court Hearings, supra.
[4] Michael Gerhardt, Getting the Senate’s responsibilities on Supreme Court nominations right, SCOTUSblog, March 9th, 2016,
[5] Gerhardt, supra.
[6] Id.
[7] Geoffrey Stone, The Supreme Court Vacancy and the Responsibilities of the Senate, Huffington Post, February 24, 2016, (emphasis in original).
[8] Gerhardt, supra.
[9] See also Curtis A. Bradley and Neil Siegel, Historical Gloss, Constitutional Conventions, and the Judicial Separation of Powers __ Georgetown L. J. __ (forthcoming 2016), at or

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