Sometimes the best way to forge a path is to decisively stand one’s ground. The US Senate can rightly stand resolute against holding hearings or casting votes on President Barack Obama’s nomination of Judge Merrick Garland of the DC Circuit—or any other nominee, for that matter—to replace Justice Antonin Scalia. Indeed, the American people installed an opposition party-controlled Senate in 2014 to act as a check against a president who has repeatedly misused executive power, restraining him during his final years in office. This moment in American history is ripe for the Senate’s principled, deliberate inaction.
Of course, activists who view the passing of Justice Scalia as an opportunity to move the Supreme Court in a liberal direction do not agree that Senate inaction is acceptable. On February 24, 2016, a group of thirty-three self-described “constitutional law scholars” organized by the progressive American Constitution Society sent an open letter (the “ACS Letter”) to President Obama and the leadership of the Senate. The ACS Letter urges President Obama and the Senate to “fulfill their constitutional duties with regard to the vacancy that exists on the Supreme Court.” It then concludes that the role of the Senate to “advise and consent” requires the Senate “to hold hearings and to vote on the nominee” President Obama submits.
The ACS Letter incorrectly contends that the Senate has a mandatory duty to hold hearings and take votes on Supreme Court nominees. In fact, nothing in the Constitution requires the Senate to take action in any particular timeframe on a president’s nomination to fill a vacant Supreme Court seat.
The Senate and the Executive Branch
Regarding the appointment power, the Constitution simply provides that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the [S]upreme Court.” Federalist No. 67 makes clear that the appointment power is held jointly by the president and the Senate: “The ordinary power of appointment is confided to the President and Senate jointly.” Indeed, the Supreme Court itself has expressly recognized that Senate approval is required to effectuate an appointment to the Supreme Court (except for temporary recess appointments).
The appointment power is thus a joint power for which the Senate and the president are vested with equal authority. The Senate is free to exercise its own power and role in the appointment process in the time and manner it sees fit. The Senate may approve, reject, or choose to not act on nominations according to its own assessment of the appropriate course of action. It need not accede to a president (or anyone else) urging consideration of a nominee.
The Constitution bridles each of the three branches of the federal government in specific ways, because of the Founders’ strong conviction that “checks and balances were the foundation of a structure of government that would protect liberty.”
Federalist No. 76 explains that the “probity of the Senate” permits interested parties “to rest satisfied, not only that it will be impracticable to the Executive to corrupt or seduce a majority of its [the Senate’s] members, but that the necessity of its co-operation, in the business of appointments, will be a considerable and salutary restraint upon the conduct of that magistrate [the Executive].”
Indeed, the necessity of the Senate’s cooperation and concurrence in appointments is “an excellent check upon a spirit of favoritism in the President.”
Thus, when the Senate exercises its power to restrain the president, it does not damage the constitutional order. Instead, such clashes are evidence that the system the Founders devised is working robustly to prevent tyranny from arising through the accumulation of overwhelming power in the executive branch. The Senate is doing its job when it impedes the activist agenda of an overambitious president.
A Tradition of Deliberate Inaction
The ACS Letter erroneously asserts that “for the Senate not to consider a nominee until after the next president is inaugurated would be unprecedented.” To the contrary, the Senate’s prerogative to decline to take action on nominees has been demonstrated numerous times in American history.
Congressional Research Service reports from 2012 and 2010 reflect that, of the individuals officially nominated to serve on the Supreme Court, at least eight of them (5%) have failed to achieve confirmation as a result of postponement or inaction by the Senate. At least eight times in the nation’s history, an individual officially nominated to the Supreme Court failed to achieve confirmation as a result of the Senate deciding to take a decisive stand against deliberative action on a president’s nomination.
For instance, on February 14, 1853, President Millard Fillmore nominated William C. Micou to serve on the Supreme Court following the death of Justice John McKinley. There is no record of any hearing held by the Senate Judiciary Committee, much less by the full Senate. The nomination was referred to the Senate Judiciary Committee on February 24, 1853. That same day, the Senate ordered the Senate Judiciary Committee discharged of the nomination. There is no record of Senate consideration of the nomination after that discharge. Thus, the Congressional Research Service reports reflect that the nomination failed without any deliberative action taken by the Senate.
Indeed, the Senate refused to act in order to hold open the vacancy for incoming President Franklin Pierce to fill—dispelling any notion that the Senate has never left a Supreme Court seat open pending the inauguration of a new president. Even more remarkably, the Senate had also used forms of deliberate inaction to defeat President Fillmore’s two previous nominees to fill the same seat, again in order to save the seat for the next president to fill. These facts are recorded in source, after source, after source, lest there be any doubt as to historical Senate practice. Moreover, in just the limited period of 1987–1996, a total of 154 nominations submitted by presidents for judicial and other senior federal government positions failed after the Senate held no hearings. It is therefore clear that the Senate has many times chosen the path of purposeful inaction in response to presidents’ nominations—a path that the Constitution well permits.
The Supreme Court Can Function with Eight Justices
The ACS Letter wrongly asserts that declining to consider a nominee until after the next president is inaugurated “would leave a vacancy that would undermine the ability of the Supreme Court to carry out its constitutional duties,” alluding to the potential for “4–4 splits.” There is no constitutional requirement that nine justices (or any other odd number of justices) be seated in order for the Supreme Court to conduct its business. Moreover, there is no reason to think that the current eight-justice Supreme Court will deadlock 4–4 in a significant number of cases. Information compiled in the Supreme Court Database demonstrates that tied decisions are historically few, even with only eight justices.
If a 4–4 tie does occur in a Supreme Court case—whether because a ninth justice has not been seated, or because one of nine sitting justices recuses himself or herself—it is by no means a constitutional crisis. In such a situation, the Supreme Court has reasonable options.
The Supreme Court may choose to effectively conclude its role in the case by issuing a cursory decision that upholds the prior decision of the pertinent lower court. In such a case, the ruling of the lower court is affirmed, with no Supreme Court precedent being set—i.e., the status quo is preserved. The result is simply as if the Supreme Court did not take up the case in the first place. If different interpretations of law prevail in different parts of the country in a manner that invites a resolution, the underlying legal issue may ultimately make its way back to the Supreme Court, or it may be addressed legislatively.
Alternatively, the Supreme Court may choose to postpone deciding a case preliminarily tied 4-4 until a ninth justice is eventually seated. The Supreme Court could then hold a new oral argument and reach a conclusion with a majority opinion that would be precedential. The sky would not fall in the meantime.
History teaches that extended vacancies on the Supreme Court do not grind the business of the Court to a halt. The Supreme Court functioned during the 391-day period between Justice Abe Fortas resigning on May 14, 1969, and Justice Harry Blackmun being seated on June 9, 1970, following the Democrat-controlled Senate’s rejection of Republican President Richard Nixon’s two prior nominees. The Supreme Court also functioned during the 237-day period between the retirement of Justice Lewis Powell on June 26, 1987, and the seating of Justice Anthony Kennedy on February 18, 1988, after (among other things) the Democrat-controlled Senate rejected Republican President Ronald Reagan’s nomination of Robert Bork.
Confirming a New Justice under the Current Circumstances Would Be Unprecedented
In contrast to the mistaken claims in the ACS Letter, what would truly be unprecedented is for a Supreme Court justice to be confirmed under the current peculiar circumstances: a divided government during a term-limited president’s final year in office. A Supreme Court seat vacated in a presidential election year has never in US history been filled through Senate confirmation by an opposition party-controlled Senate when the president is in the final year of his term and is constitutionally prohibited from running for president again, as is evidenced by evaluating data collected by the Congressional Research Service, at the U.S. Senate Supreme Court Nominations page, at the U.S. Senate page reflecting party divisions over time, and elsewhere.
The American people most recently expressed their will regarding the composition of the federal government in the 2014 national election, when the voters installed a Republican Senate in juxtaposition to a Democrat president. A logical conclusion is that the people chose a divided government because they wanted to check and restrain President Obama’s ability to select the next potential Supreme Court justice during his final stint in office.
President Obama’s Misuse of Executive Power
No doubt, the party controlling the Senate in a time of divided government will typically have an incentive to delay action on a Supreme Court nominee pending the outcome of an intervening election. In the current situation, however, particularly compelling reasons ultimately support the conclusion that the best course is for the Senate to hold open Justice Scalia’s seat.
President Obama has himself directly (and through his executive agencies) repeatedly misused executive power since the confirmation of his two previous nominees to the Supreme Court (Justice Sonia Sotomayor and Justice Elena Kagan). For instance, President Obama has:
- unilaterally taken unconstitutional executive action instead of securing the passage of his favored policy initiatives through approved legislative means, including regarding immigration and gun control;
- refused to “faithfully execute” the laws by engaging in selective non-enforcement of existing immigration law (with the question of his faithful execution soon to be considered in a pending case at the Supreme Court);
- promulgated through the Department of Health and Human Services a mandate that requires employers to offer health insurance plans that cover contraception and abortion-inducing drugs in violation of the religious beliefs of many employers (held unlawful in 2014 as to closely-held private corporations, and on review again at the Supreme Court in a consolidated appeal of cases involving religious non-profits);
- and made improper recess appointments to the National Labor Relations Board, which were held in 2014 to be unconstitutional by all nine justices of the Supreme Court.
These examples are just a few of the many well-documented misuses of executive power during President Obama’s tenure. He has repeatedly attempted to circumvent Congress on issues that matter profoundly to the American people.
The Obama administration has driven the Senate and the American people to a point of deep distrust. The proliferation of recent executive-branch actions that are untethered to the Constitution is very troubling. Because of President Obama’s repeated violations of law, constitutional boundaries, and public trust, there is understandable concern that his nominee to the Supreme Court could turn out to be someone who employs the same type of ends-justifies-the-means approach from the bench. There is a justified apprehension that President Obama’s selection will be more interested in fundamentally transforming American society than in strictly construing the Constitution.
Moreover, President Obama’s record stands in particularly stark contrast to Justice Scalia’s. Justice Scalia was venerated for his staunchly faithful interpretation of and adherence to the Constitution.
It is therefore eminently reasonable for the Senate to exercise its clear constitutional power to ensure that President Obama is not permitted—on his way out of office—to select a Supreme Court justice who will affect the trajectory of the Court’s jurisprudence for decades to come.
The Voters Deserve to Be Heard
The Supreme Court itself sits at a unique crossroads in its history. Many times in recent decades, it has taken away from the American people and the states the right to make their own choices about major cultural issues. Instead, the moral and policy preferences of a handful of unelected justices have been imposed on the entire country. The Supreme Court has often legislated from the bench instead of allowing the American people to legislate for themselves through Congress, state legislatures, and local institutions. This judicial over-reach has extended to such significant issues as abortion, the definition of marriage, and the permissibility of prayer in schools. Importantly, Justice Scalia was one of the justices who consistently curbed the tendency of the Court to view itself as a cultural vanguard divining new purported rights from the so-called emanations and penumbras of the Constitution.
The Senate has an extraordinary opportunity to give the people a chance to evaluate the ongoing presidential campaigns and elect a new president with the vacancy on the Supreme Court firmly in mind. The election will proceed with the understanding that the new president will be nominating a justice to replace Justice Scalia. That justice may very well make the difference between a restrained Court or an activist Court, particularly for cases involving significant cultural issues. The eventual decisions regarding Justice Scalia’s replacement will then be informed by the full, fresh, well-considered vote of the people, who will surely grasp the significance of the stakes in play and communicate their collective desire through the ballot.
It therefore makes sense to give the voters the chance to express whether they prefer a president who will nominate a justice who dispassionately construes the Constitution, or an activist justice.
A resolute Senate is justified under the present circumstances. Altogether, there are more than ample grounds for the Senate to refrain from taking any action to consider a new Supreme Court justice—indeed, to engage in deliberate inaction—until after the election and inauguration of a new president. There is certainly a clear and principled basis for the Senate to stay the course of acting as a check against President Obama, and as a champion of the right of the voters to have a meaningful voice in their government.