See Part 1
Let’s defer for now my quarrels with the evidentiary basis for the “historical rule” that law professors Robin Bradley Kar and Jason Mazzone posit in their law-review article on the Senate’s confirmation process for Supreme Court justices. Let’s examine instead the senatorial norm of “fair dealing” that they contend that their “historical rule” establishes.
As I read their article, Kar and Mazzone broadly argue that the senatorial norm of fair dealing mirrors their historical rule. That historical rule is:
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 both nominate and appoint someone to fill the relevant vacancy—by and with the advice and consent of the Senate.
Have in mind that the Kar/Mazzone historical rule applies to vacancies, not to nominations. As the lengthy table in the appendix to their article illustrates, their claim about the “103 prior cases” in their data set in which an elected president has succeeded in filling a vacancy includes instances in which the Senate has confirmed the president’s second, third, or fourth nomination to a particular vacancy.
So, as I understand it, their senatorial norm of fair dealing that mirrors this history is—or, consistent with the principles they espouse, ought to be—that where an elected president has made a nomination to a Supreme Court vacancy at any point in his four-year term before the next presidential election has occurred, the Senate must confirm someone (perhaps the president’s first nominee, perhaps his fourth) to that vacancy.
Yet Kar and Mazzone stop short of taking their reasoning to its logical conclusion. Instead, they declare that their historical rule translates into the proposition that “President Obama should therefore be able to appoint Scalia’s replacement, by and with the advice and consent of the Senate, so long as he is able to nominate a candidate who can obtain sufficient support from the full Senate as part of a good faith confirmation process.” (P. 73 (emphasis added).)
I find their retreat perplexing, at least as a matter of principle. What, after all, is the point of purporting to establish “a long-standing and unbroken line of historical practice”—“103 prior cases in total”—in which “the sitting President has been able both to nominate and appoint a replacement Justice” (emphasis in original) if you’re not going to insist that that historical practice imposes an obligation on the Senate to confirm one of the president’s nominees to such vacancy?
I’d speculate that Kar and Mazzone lost the consistency of their principles when they realized how extraordinary an internal Senate norm that reflects their historical rule would be. A Senate norm under which the Senate would have to confirm one of the president’s nominees to any particular Supreme Court vacancy would effect a massive transfer of power from the Senate to the president. A president who had a first nomination defeated would have no incentive to try to accommodate a Senate majority with a compromise candidate. (Why bother since the Senate would have to confirm someone?) Indeed, the closer any subsequent nomination was to the next presidential election, the more leverage the president would have.
In any event, Kar and Mazzone provide no evidence that even the modified norm of fair dealing that they advance, which would evidently require the Senate to conduct a “good faith confirmation process” (whatever that means) for each nominee, is in fact part of the Senate’s longstanding practices. Indeed, there’s ample contrary evidence that they don’t confront. For example:
As Larry Tribe, contradicting his current self, once wrote of President Grant’s 1873 nomination of George Williams, “The Senate killed the Williams nomination by simply refusing to act upon it until the embarrassed nominee asked President Grant to withdraw his name from consideration.”
Much more recently, Senator Joe Biden, then-chairman of the Senate Judiciary Committee, threatened in June 1992 not to conduct a hearing if a Supreme Court vacancy were to arise that year.
And in July 2007—more than 15 months in advance of the 2008 presidential election—Democratic senator Chuck Schumer told an applauding American Constitution Society convention that the Senate “should not confirm another U.S. Supreme Court nominee under President Bush ‘except in extraordinary circumstances.’”
(To be sure, no vacancy ever arose in 1992 or in 2007-08, but does anyone doubt that Biden and Schumer and their fellow Democrats would have followed through on their threats? In any event, their statements contradict the norm that Kar and Mazzone posit.)