Bench Memos

Law & the Courts

Law Profs Kar/Mazzone on Senate Duty on Supreme Court Vacancies—Part 5

See Parts 1, 2, 3, and 4

For the reasons (spelled out in my Part 2 post) that I don’t believe that the particular senatorial norm of conduct that law professors Robin Bradley Kar and Jason Mazzone posit actually exists, I obviously also don’t believe that Kar and Mazzone are right to contend that that norm might have “ripened into a constitutional rule.”

I’ll acknowledge that I’m very skeptical of this whole notion of “ripening.” But I’ll limit myself here to a separate objection: Under the constitutional argument that Kar and Mazzone sketch (but stop short of embracing), the Senate would have a special constitutional duty regarding Supreme Court nominations that it doesn’t have regarding all other presidential nominations. Given that there is a single Appointments Clause that covers all presidential nominations, I don’t understand how it can give rise to a special constitutional duty that applies only with regard to Supreme Court vacancies.

To be clear, I 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 entirely within its discretion to accord special treatment to Supreme Court nominations. But that same principle of plenary Senate power counsels strongly against inferring constitutional limits on how the Senate exercises its power. Indeed, the fact that the Senate can have other “patterns and practices” for other nominations ought to mean—again, given the existence of a single Appointments Clause—that those patterns and practices are constitutionally permissible for Supreme Court nominations as well.

If I’m understanding them properly (and I apologize to them if I’m not), Kar and Mazzone point to several features of the Constitution that treat Supreme Court justices differently from some or all other presidential appointees. For example, the Constitution enables Congress to divest the president of the power to appoint inferior officers; nonjudicial officers don’t have life tenure; and the Constitution itself provides for the existence of the Supreme Court (though not the number of justices) but not of the lower courts. They argue that “the constitutional text suggests that Supreme Court appointments raise separation-of-powers concerns that are distinct from many other types of appointments.” (See pp. 93-95.) But I simply don’t see how these concerns can give rise to one reading of the Appointments Clause for Supreme Court vacancies and another for other vacancies.

(I’ll add, per my point 1 here, that I don’t believe that the Appointments Clause speaks at all to how the Senate should exercise its power to decide whether to consent to nominations, Supreme Court or otherwise.)

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