Bench Memos

Law & the Courts

Law Profs Kar/Mazzone on Senate Duty on Supreme Court Vacancies—Part 4

See Parts 1, 2, and 3

Having refuted in my Part 2 post the existence of the particular senatorial norm of conduct that law professors Robin Bradley Kar and Jason Mazzone posit, I must ask the patient reader’s indulgence as I continue my broader critique of their law-review article. In this post, I will suggest that the entire enterprise undertaken by Kar and Mazzone is misconceived.

The immediate question before 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. If history might somehow provide any guidance on this question, it would seem very unlikely to come from an agglomeration of vacancies arising in any year of a presidency, irrespective whether the Senate is in same-party or opposite-party control, irrespective of the effect on the ideological composition of the Court, and, perhaps above all, irrespective of sweeping changes in the role of the Court in American political life over the past fifty years or so.

To be sure, Kar and Mazzone state that their “historical rule”—briefly, that an elected president facing a Supreme Court vacancy (and acting outside the lame-duck period) has been able to appoint a justice to fill that vacancy—“is true even of all eight such cases where the nomination process began during an election year.” But, consistent with their nearly complete disregard of the politics of Supreme Court confirmation battles, they fail to note that only two of those eight instances (if my quick tally is correct) involved confirmations by a Senate with a majority from a party different from the president’s, and those date from 1888 and 1892. Does anyone really think that sparse and distant history has any meaningful normative bearing on how today’s Senate should exercise its responsibilities?

In response to Senate Republican observations that no president has appointed a Supreme Court justice during an election year for more than eighty years, Kar and Mazzone think it effective to respond that “the past eighty years is precisely the period in which no Supreme Court vacancies occurred during an election year.” (Emphasis in original.) Beyond the fact that they again slide past the Fortas and Thornberry nominations in 1968, they never stop to ask themselves why it is that no justices have resigned or, with the exception of Earl Warren, tried to resign in an election year. Why is it that only eight of their 103 cases—less than 7%, far lower than the 25% level that random distribution would suggest—involve nominations that “began during an election year”? Surely, one part of the answer is what has been clear to nearly everyone at least since the failure of the Fortas nomination: 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—and, as Joe Biden and Chuck Schumer have highlighted, all the more risky when they are of opposite parties.

The larger problem with the Kar/Mazzone enterprise is that it is deeply ahistorical and blinkered. Like so many modern political scientists, Kar and Mazzone collect and aggregate their data points without conducting any qualitative consideration of their value, and they draw grand conclusions from their data that are divorced from the historical and political realities that they ignore.

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