In this post and the next, I will take issue with the “historical rule” that law professors Robin Bradley Kar and Jason Mazzone set forth in their law-review article on the Senate’s confirmation process for Supreme Court justices. I will argue in this post that they give a wrong (and in some respects arbitrary) answer to their inquiry, and I will argue in the next post that they make the wrong inquiry.
1. In 1968, in the aftermath of Chief Justice Warren’s announcement of his decision to resign, LBJ nominated sitting associate justice Abe Fortas to replace Warren as chief justice and Homer Thornberry to fill Fortas’s seat. A broadly bipartisan filibuster in October 1968 defeated Fortas’s nomination, and Thornberry’s died along with it. Fortas’s and Thornberry’s nominations might therefore seem to be stark counterexamples—election-year counterexamples, no less—to the Kar/Mazzone historical rule.
a. Kar and Mazzone gerrymander their way around this inconvenience by crafting their historical rule to apply only to “actual” vacancies. Warren, you see, “had merely announced his intention to retire from the Court “effective at [LBJ’s] pleasure.” So there was no “actual” vacancy for LBJ to fill.
This dodge is makeshift and inconsistent with their treatment of other vacancies that also weren’t “actual.” It is common for justices to make their resignation effective only at some later date or upon some later event, and Kar and Mazzone routinely include such deferred vacancies in their list of “103 cases.” (An “actual” vacancy is needed only at the time of appointment, not at the times of nomination or confirmation.)
Justice O’Connor, for example, resigned “effective upon the … confirmation of my successor.” (Actually, in a classic O’Connor muddle, she resigned “effective upon the nomination and confirmation of my successor,” but the latter event was understood to be the determinative one.) Thus, there was no “actual” vacancy when President George W. Bush nominated first John Roberts, then Harriet Miers, and then Samuel Alito to replace O’Connor, nor was there any “actual” vacancy when the Senate voted to confirm Alito on January 31, 2006.
Justice Blackmun made his retirement effective on August 3, 1994, so there was no “actual” vacancy when President Clinton nominated Stephen Breyer to replace Blackmun in May 1994 or when the Senate confirmed the Breyer nomination on July 29, 1994.
Justice Marshall made his 1991 retirement effective on October 1 of that year. So there was no “actual” vacancy when President George H.W. Bush nominated Clarence Thomas to replace him on July 8, 1991. (The vacancy did end up arising two weeks before Thomas’s confirmation by the Senate.)
Chief Justice Burger made his 1986 retirement effective on September 26, 1986, so there were no “actual” vacancies in June 1986 when President Reagan nominated associate justice Rehnquist to be chief justice and Antonin Scalia to fill Rehnquist’s seat, nor were there “actual” vacancies when the Senate confirmed those nominations on September 17, 1986. (In their appendix, Kar and Mazzone make two errors when they state that the vacancy that Scalia filled arose on September 17, 1987. They mean 1986, not 1987, and Rehnquist did not vacate the seat until he was sworn into the Chief Justice position on September 26.)
Again, Kar and Mazzone count each of these instances towards their total of 103, so how can they exclude from their data set LBJ’s nominations of Fortas to replace Warren and of Thornberry to replace Fortas?
b. Kar and Mazzone, I’ll note, argue that the Fortas confirmation process “fits with [their] principal conclusions” (whatever that means) and, on the facts, “is readily distinguishable from” the Garland situation. Perhaps so. But that doesn’t justify their treating it, for purposes of their historical rule, in a manner that is inconsistent with their treatment of other nominations that did not involve “actual” vacancies.
c. To compound their mistreatment of the Fortas nomination, Kar and Mazzone wrongly contend that the Senate’s confirmation of the nomination of Anthony Kennedy on February 3, 1988 “provid[es] the closest precedent that speaks to election-year confirmation within the last eighty years.” (Yes, they do acknowledge that the vacancy to which Kennedy was confirmed “arose prior to an election year,” but the careful reader will need to go to a footnote or to their appendix to infer or discover that the vacancy arose in June 1987. The careful reader will also discover that the appendix wrongly classifies Kennedy’s nomination as an election-year nomination; Kennedy was nominated, following the Bork fiasco, in November 1987.)
2. Kar and Mazzone arbitrarily exclude from their data set vacancies faced by presidents who weren’t elected to the office but who instead, on the death of the elected president, succeeded to the office from the position of vice president. This exclusion enables them to eliminate three 19th-century vacancies that were never filled.
Kar and Mazzone defend this exclusion on the ground that back then “there was ambiguity over the status” (emphasis in original) of a person who succeeded to the office of president from the vice presidency: did he literally become president or was he simply acting as president? But while this ambiguity might have affected such things as the title the person could use and his salary, it would be strange to thing that it affected the powers he could exercise—whether to nominate and appoint officers, to sign or veto bills, or to act as commander-in-chief—and Kar and Mazzone do not suggest otherwise. Indeed, the fact that President Tyler and President Taylor 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.
(I don’t dispute that the unelected status of certain presidents may well have been politically significant to the Senate’s treatment of their nominations. But, as I shall discuss in the next post, consideration of political realities is largely missing from the Kar/Mazzone treatment.)