Bench Memos

Law & the Courts

Law Profs Kar and Mazzone Respond

Law professors Robin Bradley Kar and Jason Mazzone have kindly responded to my series of posts taking issue with their law-review article on the Senate confirmation process for Supreme Court justices. I am grateful for their civilly engaging me, and I am pleased to post their entire response, here and below the fold. (I’m inclined to think that interested readers have what they need to sort through the competing arguments and that there would be no point in my extending things another round.)

The remainder of this post is from Kar and Mazzone:

We first thank Ed Whelan for his six thoughtful responses (see 1, 2, 3, 4, 5 and 6) to our essay, The Garland Affair.

In our essay, we consider Senate Republicans’ current plan to transfer President Barack Obama’s constitutionally designated power to appoint a replacement for Justice Scalia to an unknown successor. We set forth evidence showing that the Senate has never before attempted or effected such a deliberate inter-presidential transfer of power except in circumstances where there were contemporaneous questions about the status of the nominating President as the most recently elected President. No such questions exist with respect to President Obama’s nomination of Judge Garland to replace Justice Scalia. Hence, the Senate Republicans’ current plan marks a much greater departure from more than two centuries of historical precedent than has thus far been recognized. 

Whelan does a nice job of summarizing our main points in his first introductory post. As virtually all commentators—including Republican leaders—agree, history matters when determining the propriety and prudence of the Senate Republicans’ current plan. History can help clarify internal senatorial norms of fair dealing. History can also ripen into a constitutional rule that informs the best interpretation of constitutional text and structure. Accordingly, the historical tradition we identify clarifies pragmatic and constitutional risks with the Senate Republicans’ current plan that have not yet been fully appreciated. We suggest that Senate Republicans should rethink their current plan in light of these facts and—at the very least—explain why such risks do not weigh in favor of adhering to the practices the Senate has always followed with respect to Supreme Court appointments from the earliest days of the Republic. Our analysis and conclusions are deliberately apolitical. Were Senate Democrats to hatch a plan to transfer a Republican President’s Supreme Court appointment power to an unelected successor, we would deem it equally unprecedented and unwise. We also offer no view on whether, at the end of an appropriate process, Senators should vote to confirm Judge Garland.

In his series of posts, Whelan promises to show that our essay “provide[s] no reason for Senate Republicans to reconsider their course on the Garland nomination” (emphasis added). But for reasons we discuss below, Whelan does not deliver on this promise. Whelan brings his characteristic intelligence to bear on these issues, and he engages very carefully with our evidence and conclusions. As the leader of one of the nation’s preeminent conservative think tanks, Whelan has plenty of incentive to show we are wrong. Despite all of this, our analysis emerges undented—thus suggesting that the problem we describe in the essay is perhaps even more acute than we initially posited.  

Our response points track Whelan’s next five substantive posts.

1. On The Implications of History for Senatorial Norms of Fair Dealing

In his first substantive post, Whelan begins with a short statement of a historical fact that we identify in our essay:

Whenever a Supreme Court vacancy has existed during an elected President’s term and this President has acted prior to the election of a successor, the sitting President has been able to nominate and appoint someone to fill the relevant vacancy—by and with the advice and consent of the Senate.

Whelan then devotes the post to arguing against the view that that fact has any relevance for internal senatorial norms of fair dealing as they relate to the present appointments controversy.

The majority of Whelan’s argument is, however, directed not at the norms that we actually derive from this historical fact but rather from norms that he believes we “ought” to have derived but do not: namely, that “the Senate must confirm someone (perhaps the president’s first nominee, perhaps his fourth) to that vacancy.” Whelan finds it perplexing that we do not go so far as to make that point. He also observes that such a rule (were we to derive it) would “effect a massive transfer of power from the Senate to the president.” Indeed, that is true. The reason we do not take the hypothetical step Whelan identifies is that our argument is rooted precisely in history and in what historical practices establish with respect to separation of powers and Supreme Court appointments. We are trying to preserve the status quo and head off unprecedented transfers of power in either direction. Hence, the same type of reasoning that Whelan identifies for rejecting this hypothetical rule, and which he spends the majority of his post rebutting, explain why we think the current Senate Republican plan is problematic.

So what rule of fair dealing does historical precedent actually establish? In our essay, we say:

By examining every Supreme Court appointment process in U.S. history, we uncover a principled but underappreciated distinction between cases where the Senate has provided advice and consent on particular Supreme Court nominees—by considering them (and either confirming, rejecting or resisting them on the merits using a wide array of senatorial procedures)—and cases where the Senate has sought deliberately to transfer a sitting President’s complete Supreme Court appointments powers to a successor. We show that tactics of the latter kind have always been limited to the unusual circumstance where there were contemporaneous questions concerning the status of the nominating President as the most recently elected President.

Because there is no credible question about the status of President Obama as the most recently elected President, the Senate Republicans’ current plan breaks from the rule that the Senate should consider President Obama’s nominees on their particular merits—rather than resisting any and all in advance and based on who the nominating President is. The Senate remains free, of course, to reject particular nominees on a wide range of grounds. But there is no historical tradition that supports a claimed power on the part of the Senate simply to deny the President wholesale any possibility of filling the vacancy. 

When Whelan turns his attention away from the hypothetical and toward the actual norm of fair dealing that we identify, he suggests that “there’s ample evidence [against this view that we] don’t confront.” This would have been a wonderful place for Whelan to offer evidence of at least one case in which the Senate deliberately divested an elected President of his Supreme Court appointment powers and transferred them to an unelected successor, independent of the merits of any particular candidate. But Whelan provides no such precedent. And, based on our own careful review of the historical record, we are confident that none exists. 

Instead, Whelan cites one case, which was included in our dataset, in which the Senate resisted a particular candidate (George Williams) from President Ulysses S. Grant but then allowed President Grant to nominate and appoint a different candidate (Morrison Waite). That example bears no fruit. It represents resistance to a particular candidate from a President, not the complete divestment of a President’s power to appoint a Justice. As such, the example actually supports our conclusion that the Republicans’ current plan is unprecedented.

Whelan then cites two other instances (which we also note in our essay) where Democratic members of the Senate, Senators Biden and Schumer, voiced views against election-year nominations. We suspect that Whelan in most other circumstances would be disinclined to derive constitutional meaning or rules of fair dealing from remarks of Biden and Schumer. More importantly though, as we explain in our essay, these professed views never resulted in any senatorial action and therefore create no historical precedent for Senate action. Just as the meaning of a piece of legislation cannot be derived from isolated floor debates that favor the legislation (especially if that legislation was never passed), precedent relevant to Senate action surely cannot be derived from the views of independent Senators that never led to any Senate action (especially if those views are inconsistent with more than two centuries of U.S. tradition and precedent).

On several occasions when Whelan discusses our essay, he inserts parentheticals suggesting the need for more clarity. In his first substantive post, for example, Whelan says that we assert, based on the historical evidence, that it is “part of the Senate’s longstanding practices” to conduct “‘a good faith nomination process’ (whatever that means) for each nominee . . . .” Readers should note that in our full essay, we in fact go to great lengths to describe what we mean by a good faith nomination process. Our bottom line is quite simple. First, good faith requires that the Senate not act to deliberately divest President Obama of his Supreme Court appointment powers using any procedures. The Senate can use its “advice an consent” powers to resist candidates—but it cannot resist the Constitution’s allocation of authority to the President to initiate the evaluative processes of particular candidates by the Senate. Second, and more affirmatively, history provides a guide as to what kind of processes are required for the Senate to act in good faith. As we show, the Senate has never before prevented a Supreme Court nominee from going to the full Senate floor absent questions about the status of a President as the most recently elected President. Hence, consistency with two plus centuries of practice requires the Senate to proceed to full consideration of any and all nominees that President Obama submits in a timely manner.

2. Interpreting the Historical Record

In his next post, Whelan takes on our historical evidence (as opposed to the norm of fair dealing that arises from it). His central claim is that we are, in effect, “gerrymandering” our understanding of the historical record by stating it in ways that exclude the episode of Abe Fortas. We find the objection perplexing. We in fact devote a long section of the essay to Abe Fortas. That section begins by explicitly noting that the Fortas episode “provides the closest possible exception to our historical account . . . .” We do not think we can be guilty of hiding the Fortas ball.

Whelan rightly notes, on the other hand, that we observe that the Fortas case “fits with our principal conclusions”. He then adds “(whatever that means)”, thus suggesting a need for clarification. In the paragraph that follows the very sentence Whelan quotes, we supply the clarification he demands. As an initial matter, unlike the case of Judge Garland, Abe Fortas’s nomination went to the full Senate floor where the nomination was resisted on the merits. Hence, this was a case in which the Senate used its advice and consent powers to resist a particular candidate—and not a case in which the Senate sought to deliberately divest a President entirely of his Supreme Court appointment powers. This case thus supports our principal conclusions in a very clear sense. In addition, but secondarily, we note that this was a case in which no actual vacancy ever arose.

Focusing only on this second point, Whelan next offers the intriguing argument that we may be over-counting things to suggest that there have been 103 prior actual Supreme Court vacancies of relevance to our analysis. Unfortunately, Whelan’s suggestion doesn’t gain muscle. His claim would surely be persuasive if he could identify at least one example of an actual vacancy that existed during an elected President’s term and that the elected President was unable to fill when acting before the lame-duck period. Instead, Whelan lists four examples where Justices announced their retirement conditional upon the sitting President appointing a replacement Justice. These are all cases in which the actual vacancy still arose during these Presidents’ terms (so there is no literal over-counting); and, moreover, cases where the President was actually able to fill the vacancy. Not one is a case where an elected President faced an actual vacancy but was unable to fill it. If anything, shifting these cases to the other side of the ledger would only strengthen the claims we make in our essay. Whelan’s cases show that the Senate has traditionally respected a President’s Supreme Court appointment powers even if a nomination begins before an actual vacancy has fully materialized.

Whelan is ultimately right that we tried hard not to include the nominations of Abe Fortas and Homer Thornberry in our count of 103, but wrong about the reasons. As Whelan notes, if we took out the requirement of vacancies (whether conditional or not) actually materializing during a President’s term, then we would have had to include both Fortas and Thornberry. But Thornberry was nominated to a position that never existed—so neither LBJ nor the Senate ever had the constitutional power to appoint him. That case is clearly inapposite and cannot be included. If we were to include Fortas, on the other hand, we could have stated that there were 104 prior cases that are on point and in which the Senate has resisted particular candidates without rejecting outright a President’s power to appoint Supreme Court justices. Instead, we elected a more modest approach. Rather than pump up the numbers and move on, we thought it more responsible to discuss the Fortas episode in detail and on its own terms.

Whelan next argues that we compound our alleged mistreatment of the historical evidence when we suggest that the Senate’s confirmation of the nomination of Anthony Kennedy on February 3, 1988 “provid[es] the closest precedent that speaks directly to election-year confirmation within the last eighty years.” But his main disagreement seems to be that we say in the main text that this vacancy “arose prior to an election year”, so as to distinguish this case from President Obama’s nomination of Judge Garland, while only giving the exact date when the vacancy arose (June 1987) in a footnote. In other words, Whelan seems to agree with us that this case is not directly on point; but is closer than some others. We see more agreement than disagreement on all the relevant facts. 

In context, however, Whelan is more charitably understood to be suggesting that if one limits attention to the last eighty years, the Fortas precedent is closer than the Kennedy precedent. Rather than trying to adjudicate difficult questions of closeness, let us just reiterate that if the Fortas precedent is closer, then it should be followed. But following that precedent would require the full Senate to consider Garland (or any other nominees that Obama submits in a timely manner) on the merits. In addition, we don’t even need to think about questions of closeness if we look at all of the actual cases of election-year vacancies that are on directly point. As we show in our essay, the earliest such case occurred 84 years ago (just outside the 80 year limit) but involved a nomination and confirmation of a replacement Justice. In fact, all eight relevant precedents that speak directly to election-year vacancies in circumstances similar to President Obama’s nomination of Judge Garland led to the confirmation of some nominee.

Whelan suggests that in our count of 103, we also “arbitrarily exclude from the[] data set vacancies by presidents who weren’t elected to the office but who instead, on the death of an elected president, succeeded the office from the position of vice president.” He says that “while this ambiguity might have affected such things as the title the person could use and his salary, it would be strange to think that it affected the powers he could exercise—whether to nominate and appoint officers, to sign or veto bills, or act as commander-in-chief.” But as strange as this might sound now, we point to historical evidence in our essay suggesting that many Senators in the early Republic did question whether this fact affected these Presidents’ Supreme Court appointment powers. Historical meaning cannot be determined by contemporary intuitions of strangeness, and—as we show—there was evidently more historical ambiguity over this question in the very early Republic than there is today and with the clarification provided by the 25th Amendment.

Finally, Whelan suggests that “the fact that President Tyler and President Fillmore were each able to fill one of the two Supreme Court vacancies they faced shows that the Senate was not taking the position that either lacked the power to fill such vacancies.” True enough. But we don’t suggest that the Senate took that position or that its actions suggest such any such conclusion. Rather, our essay suggests that “[t]he early historical record . . . suggests at most the permissibility—as opposed to the necessity—of the Senate transferring a sitting President’s Supreme Court appointment power to a successor when the President assumed the office only by succession.”

In sum, as best as we can tell, Whelan provides no example of a deliberate transfer or divestment of a President’s Supreme Court appointment powers outside of the highly unusual circumstances that we describe. Hence, he provides no genuine reasons for concern over our larger historical analysis.

3. Asking the Right Questions

We rather like Whelan’s next post because it goes to fundamentals. Whelan suggests that even if we have described the historical record correctly and even if this history has generated the senatorial norm of fair dealing that we describe, we misconstrue the core question at issue in the current appointments controversy. According to Whelan, “[t]he immediate question before the Senate Republicans upon Justice Scalia’s death was how to deal with (a) a nomination by an opposite-party president, (b) in an election year, (c) that threatens to dramatically alter the ideological composition of the Court.”

We think this statement revealing in ways that buttress our ultimate concerns with the Republican plan. It suggests that the architects of the plan asked a purely political question without considering what tradition would require. As such, the architects of this plan may not have properly evaluated whether the refusal to consider any nominee from a particular President would breach internal norms of fair dealing or generate underappreciated constitutional risks. Naturally, Republican Senators would prefer to replace Justice Scalia with a Republican appointee. But does it break with over two centuries of historical tradition to turn this preference into an attempt to divest an elected President of his constitutionally designated appointment powers, as opposed to confirming, rejecting or resisting particular candidates in ways that seek to shape and moderate a President’s choice of nominees? The historical record suggests that it does. Hence, Senate Republicans must now ask themselves other questions, which concern the pragmatic and constitutional consequences of this unprecedented breach.

Whelan also suggests that he would personally carve up the historical evidence differently and suggests that “[l]ike so many modern political scientists, Kar and Mazzone collect and aggregate their data points without conducting any qualitative consideration of their value . . . .” But that is not quite accurate—not only because we bring philosophical, sociological and historical methodologies to the table—but also because we spend a great deal of time discussing qualitatively why our account of the historical record not only explains but also justifies in plausible constitutional terms the Senate’s actions in relation to Supreme Court appointments over the course of U.S. history. For example, we go to considerable lengths to show that questions concerning the status of a President as the most recently elected President matter in the specific context of Supreme Court nominations because different separation of powers issues are implicated. It is certainly possible to disagree with our arguments, but not—we think—possible to think that we are mindlessly following data points without a deeper (and explicit and quite detailed) account of their meaning or value. We also explain in great detail why our approach offers a better and more principled way of carving up of the historical evidence, which reveals a much longer standing historical tradition, than any that limits attention to the last eighty years.

In arguing for a different way of cutting up the historical evidence, Whelan suggests that our parsing effectively ignores “the historical and political realities.” He bases this objection on the claim that we have never “stop[ped] to ask [ourselves] why it is that no justices have resigned, or, with the exception of Earl Warren, tried to resign in an election year”—or why only eight of our 103 cases (less than 7%) involved nominations that “began during an election year.” Whelan says that “[s]urely, one part of the answer is . . . that it is much riskier to try to get a vacancy filled in an election year, even when the Senate majority and the president are of the same party . . . .”  We fully agree—which is why we say explicitly that the analysis would be different if President Obama were to “fail to fill the vacancy because he is unable or unwilling to find a candidate who can make it through a full Senate vote” as opposed to failing “because the Senate simply refuses to consider any nominee from a particular President.” The concept of risk that Whelan references has no meaning at all, however, if the Senate is willing to state in advance that it will not appoint any nominee from a particular President, regardless of credentials or moderation. When that happens, the Senate is departing sharply from the role it has played in the past two plus centuries when providing “advice and consent” on Supreme Court nominations. It is entering into the uncharted realm of divestment of a particular President of a presidential power.   

We are, of course, well aware that appointments processes have become increasingly politicized over recent decades and believe that both parties have fault in creating that situation. But there is a time when these escalating cycles of tit-for-tat can go beyond politics as usual to implicate larger breaches of process and tradition and raise underappreciated constitutional questions. At that point, responsible Senators, who are sworn to uphold the Constitution, should understand that a line may be crossed and the cycle may need to stop. By focusing only on purely political questions like the one Whelan identifies in this post, and not asking the other questions identified in our essay, the original architects of this plan may not have recognized that this threshold is being crossed. There is, however, a time when love of Country—including love of the Constitution and its long-held traditions—should come before love of party.

4. The Constitutional Argument

In his next post, Whelan notes our argument, rooted in well-established case law, that historical traditions like the ones we identify can ripen into constitutional rules that inform the best interpretation of constitutional text and structure. Whelan suggests that he wants to “acknowledge from the start” that he is “very skeptical of this whole notion of ‘ripening.’” That is a fair point but ripening is a quite standard method of constitutional analysis. Moreover, as Whelan points out, we actually “stop short of embracing” a firm conclusion that the Republican plan is unconstitutional because of the difficulties in assessing when tradition has sufficiently ripened into a constitutional rule. Nonetheless, because of those very same difficulties, we point out that the Senate Republicans’ plan generates a significant and novel constitutional risk that Senate Republicans cannot ignore.

Whelan’s argument against our constitutional analysis is his most sparse. He says he will “limit [himself] to a [single] objection”—namely, that he doesn’t “understand how [a single Appointments Clause] could give rise to a special constitutional duty that applies only with regard to Supreme Court vacancies.” He clarifies that he:

won’t quarrel with the general assertion by Kar and Mazzone that “distinct [Senate] patterns and practices of dealing with Supreme Court appointments have emerged over the course of U.S. history.” Given the plenary power that the Senate has under the Constitution to conduct its affairs as it sees fit, it’s relatively within its discretion to accord special treatment to Supreme Court nominations. But that same principle of plenary power counsels strongly against inferring constitutional limits on how the Senate exercises its power.

Fair enough.  But the real question is what is the Senate’s power? Is it a power to provide advice and consent on particular nominees or a power to deliberately divest a sitting President completely of his Supreme Court appointment powers? If the historical tradition that we identify has indeed ripened into a constitutional rule, then there is no such power of the latter kind. Hence, the Senate has no power—plenary or otherwise—to use any procedures to do what it is currently trying to do. Nothing in Whelan’s argument rules out the possibility of constitutional ripening. Hence, the constitutional risks that we identify hold firm.

We do not share Whelan’s assumption that the meaning of a constitutional clause, when vague in application, can never be filled in by historical practice in ways that give phrases or clauses more determinate but context-specific meanings in application. That assumption seems to us a rather thin reed to rest a constitutional argument of magnitude upon. Even if that assumption were accepted, however, it would make no difference. When it comes to divesting Presidents of appointment powers, the Appointments Clause is explicit that Congress can take such action with respect to “inferior officers” but not Supreme Court appointments. Congress also has the power to extinguish lower federal courts (but not the Supreme Court) and to change the number of Justices on the Supreme Court by legislation. These greater powers plausibly include the lesser power to implicitly consent to longstanding senatorial traditions that include the deliberate transfer of some of these appointments from one president to another. This is a general claim about the Appointments clause. But while there is a history of such implicit consent with respect to non-Supreme Court appointments, we show in our essay that an inter-presidential transfer of Supreme Court appointment powers in current circumstances would be historically unprecedented. The obvious question in a system of limited and enumerated government power thus remains: From where does the Senate derive its authority to completely divest President Obama of his Supreme Court appointment powers?

Whelan has not fully wrestled with the constitutional risks involved with the Senate Republicans’ current plan. This not necessarily a criticism of Whelan, as he acknowledges that he is limiting himself to a very narrow aspect of our argument and may not be “understanding [these arguments] properly.” But it does suggest that this problem is worthy of greater thought and attention.

5. On Better and Worse Historical Accounts

In Whelan’s final post, he offers the type of historical account that would, in our view, be needed to genuinely respond to the historical evidence we have presented. He writes that “[a]n easy and complete (if admittedly broad and non-falsifiable) alternative explanation for the historical data on Supreme Court confirmations that law professors Robin Bradley Kar and Jason Mazzone compile is that political considerations constrain the conduct of presidents and senators.” If Whelan could provide an alternative account of the entire history of Supreme Court appointments that better explains (in both quantitative and qualitative terms) this record, then that might generate a real debate over what the historical evidence means.

So let us compare these two alternative accounts—one of which (Whelan’s) is in his words “broad and non-falsifiable” and the other of which (ours) is very detailed and well-confirmed by the entire course of U.S. history. Whelan’s explanation is that Senators have always been constrained all and only by political considerations when considering Supreme Court Justices. Ours is that, at least in the context of Supreme Court appointments, political considerations have affected Senators’ decisions to confirm, reject or resist particular candidates and hence to shape and moderate Presidents’ choices of nominees. Absent contemporaneous questions about a President’s status as the most recently elected President, however, the Senate has never divested a President of his complete Supreme Court appointment powers on any political grounds. We thus offer a clear explanation for why divestment attempts have been limited to the unusual circumstances in which they have occurred. Whelan offers no explanation at all as to why—until now—the Senate has never acted to divest in similar circumstances (even if members of the Senate majority would prefer a nominee from a president of their own party). Thus, when it comes to testing different inferences to the best explanation, Whelan offers a less good explanation.

Whelan is also wrong to suggest that his own account is non-falsifiable. His account is falsified by the fact that political preferences have not led to deliberate inter-presidential transfers of Supreme Court appointment powers when the President and majority in the Senate are of different political parties. His account is further falsified by the fact that divestments have only occurred in six cases in history—all of which involved Presidents where there were contemporaneous questions of status, and one of which included a President and majority in Senate of the same party. In all other cases, absent questions of status, the Senate has considered nominees on the merits and has never attempted to divest a President of his Supreme Court appointments powers.

Whelan suggests, finally, that our essay contributes to a further escalation of appointments controversies, citing Geoffrey Stone’s recent endorsement of our arguments in the Huffington Post. But facts are facts, which will eventually be discovered. We believe it is much better for the facts we identify in our essay to be understood and discussed now, while there is still time to consider changing courses.

Again, we thank Ed Whelan for his responses and for the opportunity to reply.







Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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