Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
When, after the death of Justice Scalia in February of 2016, President Obama nominated Merrick Garland to the Supreme Court, Senate Republicans took the position that because Scalia had died in a presidential election year, the choice of the next Supreme Court justice should be made by the next President. They therefore refused to proceed with any consideration of the Garland nomination. Senate Republicans claimed their position had nothing to do with Obama or Garland but rather they were merely adhering to a longstanding tradition of not considering Supreme Court nominees in an election year. As Rob Kar and I showed, however, there was no such tradition. Indeed, the tradition supported consideration of the Garland nomination. And, on the merits, we said, there was no constitutional basis for asserting a power (or duty) to divest a sitting President of his authority, under Article II, section 2, to “nominate . . . judges of the Supreme Court.” A President in his final year in office is still the President with all of the powers Article II gives him.
Here we go again.
Some Senate Democrats (who, two years ago, themselves complained about the way their Republican colleagues were treating Obama and Garland) say that consideration of Brett Kavanaugh to replace Justice Kennedy must be delayed until after the conclusion of the Mueller investigation. Their argument is that President Trump might have engaged in criminal conduct and, if so, he should not be choosing Supreme Court justices particularly given that the Court might be asked in the future to rule on an issue (for example, can a sitting President be indicted?) involving Trump himself. This argument should be soundly rejected.
Under Article II, there is “a President” who, unless removed from office, resigns, dies or becomes incapacitated, serves a fixed “term of four years.” During that “term,” the President “shall have Power” as defined by the Constitution. A President under investigation, indicted, and even (if it comes to it) convicted by a trial court is still the President. Indeed, a President impeached by the House of Representatives and even on trial by the Senate is still the President. Even if there is a real live other person waiting in the wings—a Vice President who would take office if the President is removed, for instance, or the winner of a presidential election awaiting inauguration—the powers of the sitting President are not reduced. We don’t designate somebody else (a decorated General, for instance) Commander-in-Chief because the sitting President is or might be on his way out the White House door. Presidential powers are vested in one office with one office-holder.
To be sure, the Senate has a good deal of discretion in choosing how to perform its constitutional duty of advice and consent. But the notion that a nomination by the sitting President is somehow defective or should be set aside or tracked differently because of the status of the nominating President (he is in his last months of office, he is under criminal investigation, he might be removed) has no constitutional basis. Under the Constitution, the President has just one status: President.