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Monday, February 15, 2016

The Peter Principle and the Supreme Court

I have not waded into the discussion of Justice Scalia's death and what happens next, although I commend what others have written here. I am in complete agreement with three things Richard Friedman (Michigan) wrote on the ConLawProf listserv: 1) This debate is entirely political and if the partisan institutional positions were flipped, so would the partisan institutional arguments; 2) The President can nominate whoever he wants before January 20, 2017, and the Senate can reject or refuse to act on any nomination within that time; 3) Senate custom is dead.

Given that (especially # 2), some thoughts/questions as we go forward:

1) (The question that gives the post its title): Does it really matter that some potential highly-qualified-to-force-the-Senate's-hand nominee (notably Sri Srinivasan) was confirmed to a lower court 97-0? Putting aside that this is all politics. Is it truly irrational for a Senator to conclude that someone could be qualified for a lower federal court and not for SCOTUS? For constitutional purposes, there is no difference in qualifications. (In fact, nothing in Article III requires appointment to any particular court, as opposed to confirmation as a federal judge). But Congress having established a statutory regime in which a judge must be separately nominated and confirmed to every seat, can't a Senator believe that someone who is good enough to be a lower-court judge is not acceptable as a SCOTUS justice? I am not saying that is the case with Srinivasan. It's just that the suggestion that Senate Republicans would accept (or be politically compelled, or embarrassed into accepting) someone because of the prior vote does not follow.

2) I also wonder about the following, with respect to the White House's seemingly quick rejection of a recess appointment (the Senate is, perhaps, in recess until February 22).

A recess appointment would likely be construed by a Republican-controlled Senate, not to mention Republican candidates for President, as subverting the intention of the nomination process laid out by the Constitution. That’s an argument—with some merit—that Obama surely wants to avoid as the White House simultaneously looks to lean heavily on the president’s constitutional responsibility to choose a justice and the Senate’s constitutional duty to confirm a reasonable selection.

But couldn't the White House successfully frame it as follows: "The Senate Majority Leader announced, within less than one day of Justice Scalia's death, that it would not  even vote on any nomination the President makes, despite his constitutionally established term continuing for another 11 months. Given this, the decision to make a recess appointment reflects not a subversion of the process, but taking the Majority Leader at his word that no confirmation could happen with the Senate in session."

3) Here is an imprecise historical analogue that, at least in counter-factual, captures a lot of what is happening politically (Michael Dorf wrote about this at Dorf on Law, although I cannot find the post). Thurgood Marshall retired in summer 1991.* And while Marshall reportedly did not want to give the appointment to George H.W. Bush, at that point it seemed certain that Bush would be re-elected, so there was no point in waiting (plus, all indications are that Marshall stayed too long, anyway and his health was failing). Of course, things had changed dramatically just one year later--it was clear the President was in trouble and he would go on to lose that November. The counter-factual is always what if Marshall could have hung around for just one more term, until say, June 1992; no one suggests he needed to stay until June 1993, after Clinton had taken office (Marshall died four days after Clinton was inaugurated). The implication is that by June 1992, no nominee would have been confirmed until after November--and once Bush lost, the nomination would await the new President. Of course, this would have put us in our current spot in reverse--a soon-to-be-leaving-office Republican President and a Democratic-opposition Senate refusing to confirm any nominee until we see what happens in November.

[*] Yes, not an election year. But surely the line cannot be January 1, especially when elections have already begun, particularly by the party out of power, by the previous summer.

Posted by Howard Wasserman on February 15, 2016 at 03:42 PM in Current Affairs, Howard Wasserman, Law and Politics | Permalink


I don't think any president is going to appoint anybody to the Supreme Court on a solemn pledge that they'll resign. I don't think O'Connor or Stevens would be appointed because if the Democrats win the election, the Republicans will try to get them to hang on through midterms, and Souter will never make it through a Republican senate.

In the end, extremely qualified is only one (and many times not the most important one) of the considerations that goes into selecting a justice.

Posted by: YesterdayIKilledAMammoth | Feb 16, 2016 1:26:37 PM

I would propose an alternative to the recess appointment and to the "sitting by designation" alternative (which I don't beleive is allowed). If, and only if, the Senate refuses to act on an Obama nominee, I would suggest that Obama nominate a former Supreme Court justice, who would make a solemn pledge to resign when the new president is in a position to fill the seat. Of course the solemn pledge is probably not enforceable, but given the public nature of this manuever, I would think the pledge would be honored. The choices are Souter, Stevens, and O'Connor, all of whom were named to the Court by Republican presidents. Though to varying degrees the mainstream of the current Republican party has been unhappy with all three, it is certainly hard to argue that they are not extremely qualified to serve. At least one of them is likely to be willing to serve, and as least one of them would still be on the Court but for extenuating circumstances (and she is not predictably ideological in a way that would justify immediate political opposition). Does adding a justice for only a year or two undermine the legitimacy of the decisions that would be made? Perhaps, but if the initial Obama nominee fails to gain approval, would it be better or worse than having 4-4 affirmances of various circuits?

Posted by: Howard Katz | Feb 16, 2016 1:12:49 PM

Bork was confirmed to the D.C. Circuit in 1982 by unanimous voice vote, but a few years later . . .

Whatever the rules should be, Obama's own opposition to Roberts and filibuster attempt against Alito can't be reconciled with expecting affirmative confirmation votes from the GOP. At most, one can criticize McConnell for the advance blanket rejection, versus waiting and then voting against, or even filibustering.

Obama's rejection of Bush nominees was just as categorical in the end, unless you say that he would have confirmed someone other than Roberts. Who? If Bush nominated a liberal? And that was replacing Rehnquist, not a swing or even a move right.

Posted by: Jack | Feb 16, 2016 12:39:13 PM

These are matters of mass psychology rather than logic. Given how they obtained their positions I'm inclined to think that very successful politicians know what they are talking about in that area.

Posted by: John | Feb 16, 2016 10:15:04 AM

Can a lower Federal court (Art. III) judge sit on the USSC "by designation"?
District Court judges often sit with a COA panel, and COA judges sometimes preside over DCt trials.
Why could't the CJ appoint someone to sit with the Supremes by designation?

Posted by: DA | Feb 16, 2016 12:48:17 AM

There is a lot of selective citing of details going on here.

Something that happened fifteen years ago is not quite the same as something that happened a few years ago with the same President. Twenty-five people isn't enough for a "filibuster." If only twenty-five vote to not give any candidate (as compared to a specific one) an up/down vote, fine. Be about as meaningless though even there that didn't come up even before someone was nominated, the day after the slot was opened.

Yes, Obama said he opposed people based on political philosophy as a whole of two candidates. Not ANY conservative. And, many senators aren't even saying that. They are saying NO ONE should be confirmed until a new President is elected. They can by an up/down vote, of course, oppose anyone as too "extreme." That isn't the concern being citing by many here. It is refusing an "up and down" vote and a twenty-five vote non-filibuster and voting against people on an up/down vote isn't that.

Posted by: Joe | Feb 15, 2016 10:11:26 PM

I think it's a very weak point. On Roberts, Obama, reasonably I think, explained at the time that he opposed Roberts's confirmation solely because of what he believed to be his "political philosophy" (while acknowledging that he was eminently qualified),* and I don't see why Republican Senators couldn't likewise say that they simply don't want to confirm a liberal.

* http://obamaspeeches.com/031-Confirmation-of-Judge-John-Roberts-Obama-Speech.htm

On Srinivasan, off the top of my head, he (a) almost certainly voted to en banc Halbig v. Burwell (could he be asked to disclose his vote in a confirmation?), and (b) joined an opinion in American Meat Institute holding that virtually all commercial disclosure mandates are constitutional.

Posted by: Asher Steinberg | Feb 15, 2016 9:27:11 PM

I think there's a bit of a straw-man attack going on here. The argument is not that Srinivasan (or anyone else's) unanimous confirmation should guarantee them a spot on the Supreme Court or that it obligates anyone to vote in a particular way. The claim is that it provides a point in their favor, if only by placing some onus on opponents to explain themselves. Hence, it seems like an overstatement to say it doesn't matter at all. But I have already said that; I will leave it there.

FWIW, I thought the Democratic opposition to Roberts was unjustified.

Alito seems like a different case, since he had a much more extensive record on the court of appeals. Certainly it seems within bounds to oppose a nominee based on their record as a judge. Perhaps that case could be made w/r/t Srinivasan, but I have not seen it yet.

Posted by: anon1 | Feb 15, 2016 8:38:17 PM

Alito was confirmed by a Democratic Senate, unanimously, in 1990. 15 years later, 25 Democrats voted to filibuster him, among them our President and many Senators who were in office in 1990, including Kerry, Kennedy and Biden. 42 Democrats would ultimately vote against his confirmation. Similarly, Roberts was confirmed by voice vote to the D.C. Circuit, and 22 Democrats voted against his confirmation to the Supreme Court a few years later. These switched votes seem reasonable to me, given the importance of the Court, as well as new information that Senators learned about judges from their time on the circuits. So the argument from the unanimity of Srnivasan or Kelly's prior confirmations seems awfully silly to me.

Posted by: Asher Steinberg | Feb 15, 2016 8:20:09 PM

Anon1, I don't think it is an obvious overstatement. The D.C. circuit may be the second most important court in the country, but it is not the Supreme Court. It's make-up is not similar to the Supreme Court. It is not the final arbiter of issues that will affect the entire country for 30, 50, 100 years like the Supreme Court. Srinivasan was confirmed to an appellate court. If Obama wishes to appoint him to the Supreme Court, so be it. But just because conservatives approved him for the D.C. circuit does not mean they have to--or should--approve him for the Supreme Court. Because the appellate court is not the Supreme Court. It is, in other words, an entirely new confirmation process with an entirely new set of political problems and an entirely new status quo.

And lastly, only two senators owe any single person here an explanation of their vote. Senators represent the people of their state, not the entire country in aggregate.

Posted by: YesterdayIKilledAMammoth | Feb 15, 2016 7:56:40 PM

"current spot in reverse"

where June is February? To avoid problems, not meant to pick on one person here. But, over three months matters. The summer of a presidential election year, especially the conventions, is a very hard time to confirm anyone. It can be done, but it's a lot easier if you have over three more months before then. June is right at the borderline of the late year problem.

The "Thurmond Rule" -- if we accept it -- was six months and maybe some other footnote (more like a guideline, as they say). Now, we are supposed to stretch it to eleven months. Such expansion of a hole that the text doesn't seem to suggest there wouldn't surprise Scalia, to paraphrase something John Oliver noted last night.

Posted by: Joe | Feb 15, 2016 7:37:03 PM

A moderate like Kennedy? The guy who ended traditional marriage? Stopped the state from executing even people OBAMA thinks they should (child rapists)? Who couldn't understand what four simple words means in the King v. Burwell case? That moderate?

Well, with such goal post shifting, anything is possible. Anyway, if the Republicans want, they have the votes, they simply can vote down any nominee Obama puts there. As Talking Points Memo's Josh Marshall argues, what McConnell is trying to do here however is move the accepted goal posts, normalize extremism. So, that won't do it.

Posted by: Joe | Feb 15, 2016 7:29:48 PM

OK--If the Republicans want to argue that the Senate should not confirm anyone who is not a "moderate like Kennedy" (who is that? Does Garland count? Any other plausible candidate?), and that even a judge like Judge Srinivasan is too reliably liberal to pass muster (based on what, exactly?), then they are entitled to make that argument. Any argument premised on the idea that the current composition of the Court can't change is unsustainable, and I stipulate--because that's all I can do!--that my position would not change were the tables turned.

Posted by: anon1 | Feb 15, 2016 7:20:12 PM

It's not hard at all to explain why not to vote for Srinivasan for the Court. He would be a reliable 5th liberal justice, flipping the court from 4-4 with a swing vote to 5-3 liberal. If Obama were to nominate a moderate like Kennedy, that argument would be harder to make.

Posted by: Douglas Levene | Feb 15, 2016 7:05:51 PM

Wow, not one drop of water! That seems obviously an overstatement. My point was this: The prior vote at least makes Republicans voice the considerations that lead them to vote differently this time around. Those considerations--including, if applicable, the ones you suggest--can then be judged on the merits. In the case of Judge Srinivasan, who was confirmed without recorded dissent to the second most important court in the country and with (as I recall) a boatload of support from respected conservative lawyers, the Republican case may be more difficult. That is my only (modest) claim.

Posted by: anon1 | Feb 15, 2016 6:31:48 PM

I don't think a COA confirmation carries one drop of water with regards to a SCOTUS confirmation. Primarily because there is an absolute world of difference between a seat on an appellate court and a seat on the Supreme Court. Senators may not particularly like the candidate, but confirm him or her anyway because the appellate court is can still be overturn by the Supreme Court--or, in the D.C. Circuit's case, the court is middle-of-the road, perhaps leaning conservative. Neither is the case in a SCOTUS confirmation.

At the same time, senators may confirm a lower court judge as a sign of good faith to a president. All of this to say, there are a whole host of considerations that go into confirming a SCOTUS appointee that are not present in confirming a lower court appointee. As a result, a COA confirmation doesn't (and shouldn't) mean a single thing in a SCOTUS confirmation.

Posted by: YesterdayIKilledAMammoth | Feb 15, 2016 6:11:08 PM

While reasonable arguments can be made for having supported a COA confirmation but opposing a subsequent SCOTUS confirmation, it's a lot harder to argue that someone you supported and was confirmed to COA by a 97-0 vote should not even got an up or down vote on the Senate floor for SCOTUS.

Posted by: Roy E. | Feb 15, 2016 5:03:20 PM

The best form of the argument is not that senators have to vote for someone for SCOTUS that they previously voted to confirm for a COA slot, because it would be "truly irrational" for them not to do so. I agree that it technically wouldn't be. However, the fact that a senator recently voted for someone forces that senator to articulate why he or she would not do so now. That may be difficult for Republicans to reasonably do in the case of Srinivasan in particular, forcing them to fall back on their general procedural points (which some view as weak). So, while the 97-0 vote is not determinative, it does seem to "matter."

Posted by: anon1 | Feb 15, 2016 4:41:41 PM

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