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Tuesday, March 22, 2016

Kar and Mazzone on Why President Obama Has the Constitutional Power to Appoint Scalia's replacement

Robin Kar and Jason Mazzone (both of Illinois) have posted  Why President Obama Has the Constitutional Power to Appoint--and Not Just Nominate--a Replacement for Justice Scalia to SSRN. The abstract is after the jump.

The opportunities that SSRN, Law Review Supplements, blogs, and other sites provide for this type of immediate-and-scholarly work is a boon to legal scholarship.

After Justice Antonin Scalia’s recent death, politicians wasted no time before teeing up a political battle over his replacement. Republican Senators—led by Senate Majority Leader Mitch McConnell—immediately announced that they will not consider or vote on any replacement nominees from the current President. In doing so, they have taken a position that may be constitutionally problematic in ways that have not yet been fully appreciated. Now that President Obama has nominated Judge Merrick Garland to the Supreme Court, this problem requires greater attention.

The crux of the problem is that an outright refusal on the part of the Senate to consider any nominee from President Obama arguably works a delegation of an elected President’s Supreme Court appointment power to an unknown successor. While the Appointments Clause of the Constitution allows Congress to delegate a President's appointment power in certain instances, it does not permit delegation with respect to Supreme Court appointments. Hence this delegation raises a potential problem of separation of powers. Historical practice also cautions against any effort to delegate to a future President the authority to nominate and appointment a member of the Supreme Court. We show that there are 104 cases in which an elected President has faced a vacancy on the Supreme Court and began the appointment process prior to the election of a successor. In all 104 cases, the sitting President was able to both nominate and, with the advice and consent of the Senate, appoint a replacement Justice. We explain why this is a better reading of historical precedent than any limited to consideration of the last 80 years. Hence, constitutional text, structure and history suggest that the Senate Republicans’ current plan not to act at all on any Obama nominee may violate the Constitution. Given this possible constitutional problem, there are also heightened prudential risks to the position Senate Republicans have taken.

None of this means that the Senate cannot vote against President Obama’s nominees on a wide range of grounds. The Senate also has broad discretion to determine its procedures for vetting a nominee. But the delegation problem identified in this Article provides a significant reason for Republican Senators, sworn to uphold the Constitution, to rethink their current position. They should instead consider and vote upon Garland or any other timely submitted nominee.

Posted by Howard Wasserman on March 22, 2016 at 11:48 AM in Article Spotlight, Howard Wasserman | Permalink


If the authors think they have such a strong case, let them sue.

If the president takes their advice, the most likely result is that the Supreme Court marshals would simply bar Mr. Garland from the premises. End of story.

Posted by: Douglas Levene | Apr 1, 2016 2:09:52 AM

I feel President Obama has certain compulsions which every politician of his stature do have in nominating or filling a top vacancy.

Posted by: Stella | Mar 29, 2016 1:51:12 PM

That's a serious claim, AnonProf. Can you expand?

Posted by: Joe | Mar 24, 2016 12:01:17 PM

Sounds like the authors are just trying to do a "sexy topic" in hopes of getting downloads (i.e., click bait) instead of a serious piece of scholarship. Shameful.

Posted by: AnonProf | Mar 23, 2016 10:22:58 PM

The article seems to rely on the move that the Senate's position is in effect "delegation" within the meaning of the Appointment Clause, which is dubious to me.

Posted by: anon | Mar 23, 2016 7:44:08 PM

I wish the authors had been a little more bold in their conclusions. They conclude by merely recommending the Senate rethink its strategy. I would have liked to have seen them analyze whether the President could simply appoint Garland without the advice and consent of the Senate on the grounds that the Senate may not deny him his constitutional right, but they can certainly waive their own right to advise and consent and, in fact, have done so.

Posted by: Phil | Mar 22, 2016 3:06:42 PM

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