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.
Discussion
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,
http://www.politico.com/story/2016/02/mitch-mcconnell-antonin-scalia-supreme-court-nomination-219248
[2] Judiciary Committee Letter
Opposing Supreme Court Hearings, New York Times, February 23, 2016,
http://www.nytimes.com/interactive/2016/02/23/us/politics/document-Senate-SCOTUS-Letter.html
[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, http://www.scotusblog.com/2016/03/getting-the-senates-responsibilities-on-supreme-court-nominations-right/
[5] Gerhardt, supra.
[6] Id.
[7] Geoffrey Stone, The
Supreme Court Vacancy and the Responsibilities of the Senate, Huffington Post,
February 24, 2016, http://www.huffingtonpost.com/geoffrey-r-stone/the-supreme-court-vacancy_b_9310498.html
(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
http://ssrn.com/abstract=2721346 or http://dx.doi.org/10.2139/ssrn.2721346