Bench Memos

Law & the Courts

Law Profs Kar/Mazzone on Senate Duty on Supreme Court Vacancies—Part 6

See Parts 1, 2, 3, 4, and 5

Some wrap-up thoughts:

1. An 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, just as the Constitution’s separation of powers contemplates. Thus, it’s no surprise, for example, that when a president runs into a problem filling a Supreme Court vacancy, he ultimately moves to try to find a nominee who will be acceptable to the Senate. And it’s also no surprise that justices, recognizing that the potential clash between the president and the Senate might take some time to work out, generally avoid resigning during election years.

2. To those familiar with the escalation of the battles over the Supreme Court in recent decades, there should be nothing surprising about the Senate Republican plan not to process any nominee to the Scalia vacancy this year. If the situation were reversed, there is ample reason (see, for example, Joe Biden’s 1992 Senate floor speech) to believe that Senate Democrats would have adopted the same plan—and that they would in any event (see Chuck Schumer’s July 2007 speech) have acted to ensure that no nominee would be confirmed.

3. As with any dispute, each side will have its own preferred narrative of who’s at fault for the decades-long escalation. I’m not going to bother wading into the counter-narratives here. I will simply observe that the mistaken claim by Kar and Mazzone that there is something extraordinary about the Senate Republican plan will tend to fuel the further escalation that they decry.

For one stark example of this point, I’ll note this demagogic screed last week in which law professor, and amazing partisan hack, Geoffrey Stone claims that the Kar/Mazzone paper shows that the Senate Republican plan is a “cynical and unconscionable sham.” (Never mind that the same Stone who now declares that “the plain and simple fact is that there is no constitutionally legitimate justification for the Senate Republicans’ position” correctly observed back in 2006—when he was trying to defeat the Alito nomination—that “A Supreme Court nomination is, and always has been, a political process.” (His italics.))

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