Law professors Robin Bradley Kar and Jason Mazzone have published a law-review article ambitiously titled “The Garland Affair: What History and the Constitution Really Say About President Obama’s Powers to Appoint a Replacement for Justice Scalia.” (Emphasis in original.)
I’ll address their article (version revised as of June 1) in a series of posts. [Addendum, 6/10: After I completed my series of posts, Kar and Mazzone kindly submitted a long response, which I have posted here.] I’ll begin here by summarizing their claims:
1. Kar and Mazzone purport to have discovered this “historical rule” covering Supreme Court vacancies—a rule, they say, that covers “all 103 cases” within its scope that preceded President Obama’s nomination of Judge Merrick Garland to the vacancy created by Justice Scalia’s death:
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.
2. Kar and Mazzone contend that this supposed historical rule establishes, at the very least, “a senatorial tradition” that “should govern internal senatorial practices of fair dealing” in handling Supreme Court nominations.
3. Kar and Mazzone further argue that their historical rule might even have “ripened into a constitutional rule that should inform the best interpretation of constitutional text and structure” relating to the Senate’s powers and duties on Supreme Court nominations.
4. Under either view of their historical rule—that is, whether as an internal senatorial norm of fair dealing or as a constitutional rule—Kar and Mazzone argue that the Senate Republican plan not to process the Garland nomination this year “marks a much greater departure from the usual rules of the game than has thus far been recognized” and thus “threatens to damage the appointments processes in the future and risks significant harm to the Court.” They therefore urge Senate Republicans to reconsider their plan.
As I will argue in forthcoming posts, the “historical rule” that Kar and Mazzone derive is a contrived epicycles-upon-epicycles explanation, a deeply ahistorical account that excludes, in a makeshift and inconsistent manner, a notable and very inconvenient counterexample (LBJ’s nomination of Abe Fortas as Chief Justice in 1968) and that ignores broader changes in the battle over the Supreme Court.
More importantly, even if their historical rule were entirely accurate, Kar and Mazzone have no basis for transforming that rule into a supposed senatorial norm of fair dealing. A senatorial norm that the Senate generally has some sort of duty to enable an elected president to fill a vacancy during the president’s term of office would effect a huge shift of power from the Senate to the president. Kar and Mazzone cite zero evidence that any senator has ever posited such a norm, and they ignore some prominent statements by Senate Democrats in recent decades (e.g., Joe Biden and Chuck Schumer) that flatly contradict its existence. Indeed, the recent history of Supreme Court confirmation fights would be dramatically different if such a norm existed. [Update: My Part 2 post ended up offering a somewhat different treatment of this point.]
It follows that the possible constitutional rule that Kar and Mazzone posit is also clearly invalid. A second reason why such a constitutional rule cannot be taken seriously is that there is a single Appointments Clause that covers Supreme Court justices, lower-court judges, and executive-branch officers. It is nonsensical to read into the Constitution one rule governing Supreme Court justices and another rule for everyone else, but that is exactly what the Kar/Mazzone constitutional rule would do.
In sum, Kar and Mazzone provide no reason for Senate Republicans to reconsider their course on the Garland nomination.