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Thursday, April 21, 2016

Rump Courts: An Anniversary

Tomorrow, April 22, marks the 70th anniversary of the death of Chief Justice Harlan Fiske Stone. Stone's death left an already-rump Court even more short-handed. Justice Robert Jackson missed the entire October Term 1945 serving as lead Nuremberg prosecutor, so the Court already had only eight members; Stone's death left it with seven. Because it was so late in the Term, Stone's death affected only five cases decided after April 22 (Stone became ill and died immediately after reading his dissent in Girouard v. United States).

It is appropriate (or ironic) that we hit a landmark anniversary now. Due to Republican intransigence, we are in the midst of what I predict will be the longest rump Court since at least the turn of the Twentieth Century, likely lasting for 75% of this Term (as far as cases decided) and covering all of next. It also reminds that anything can happen, so that the possibility always looms (especially with three other Justices at or nearing 80) that we could face another seven-person Court, this time for more than five cases.

I imagine Stone's death played at least some role in Jackson's later belief that it was a mistake not to resign from the Court before accepting the Nuremberg appointment.

Posted by Howard Wasserman on April 21, 2016 at 11:30 AM in Howard Wasserman, Law and Politics | Permalink


"Nixon almost three months to nominate Burger and two more months for the Senate to confirm."

Worth noting another difference -- the seat wasn't vacant, here it was for quite some time. There was less of a rush, which will be easier with the quite possible Clinton + Democratic Senate.

Posted by: Joe | Apr 23, 2016 12:54:02 PM

Your first reply says this:

"I still am curious what you predict is going to happen that would allow Justice Garland or some Clinton/Trump/Cruz appointee to be in place by the last week of April 2017."

I explained, e.g., how following the Sotomayor schedule (two months plus pre-confirmation handling), this is possible. She was confirmed in two months. I also noted there were ways for a confirmation during the Obama presidency.

You also argued in the past: "There will be no one in Justice Scalia's seat until, at the earliest, October 2017." Again, I explained.

The head post says "covering all of next term." Again, I explained. You put forth a wrinkle: "would be in the seat *and* in position to hear cases."

I don't think it is 'meaningless' for the justice to be confirmed in late April myself (Citizens United was reheard in September, a person might not die because of a death penalty stay, other significant orders can and have arisen after April but before September, etc.) but again, even if that is your scenario, my reply covered that too -- I think there is a way for the nominee to be confirmed before late April.


Your usage of Nixon is at least somewhat misguided -- as noted, e.g., in that thread Fortas factored into his actions. I cited a more relevant bit of history -- Sotomayor's confirmation. I referenced this in a past post on this subject too. And, unlike there, Obama didn't have to wait for Souter's announcement. Clinton already is aware of the vacancy and will likely speedily deal with the situation. She might re-nominate Garland, saving even more time.

"As to the third," I'm open to various scenarios.

As to the last point, that's fine, though again there are various things for a ninth justice to do -- stop an execution, stay or not stay a major administrative policy, take part in a special argument, etc. These all happened in recent memory. That's why I think it appointment even in late April matters.

Posted by: Joe | Apr 23, 2016 12:48:35 PM

One more thing: The relevant denominator has to be Justices in position to decide cases. The Court during OT 45 had nine Justices, because Jackson was a member of the Court. But he was not participating in cases, which is what created the "rump" Court. So even if Garland is in place by May 1, giving us nine Justices on the Court, every case for OT 2016 would be decided by a rump Court.

Posted by: Howard Wasserman | Apr 23, 2016 12:10:29 PM

As to the first, you're kind of ignoring my point. My point was that October would be the earliest someone would be in the seat *and* in position to hear cases (and I thought I said this). Garland (or anyone else) being confirmed, sworn, and on the Court anytime from from April 30, 2017 through October 3, 2017 is meaningless because he is not deciding any cases. He will not participate in the OT 2016 cases, because he was not there for argument. And, barring an emergency or special case, nothing happens from the end of June until First Monday (even a special case, such as Citizens United, still was not argued until September). So having someone confirmed in July (as with Sotomayor) doesn't undermine my point, because that Justice still will not participate in any cases until October.

As to the second, I am going from history: It took Nixon almost three months to nominate Burger and two more months for the Senate to confirm. That is probably the earliest we might expect. But even if we cut both times in half--a confirmation by the third week in April. Would that Justice really participate in that last week of arguments, without clerks, staff, etc.? I doubt it, but maybe.

As to the third, that is the only way my prediction proves wrong. But the way things are shaking out, I wonder if, seeing the writing on the wall, some GOP Senators may dig-in further: Continue ignoring Garland, lose the Senate, filibuster Clinton's nominee, and dare the Democrats to eliminate the filibuster for SCOTUS Justices.

Posted by: Howard Wasserman | Apr 23, 2016 12:06:57 PM

It is easier to see how no justice will be confirmed by April 2017 than your original argument: "There will be no one in Justice Scalia's seat until, at the earliest, October 2017."

I felt "at the earliest" in particular a bit presumptuous especially with Clinton (expected) and a Democratic Senate (reasonable chance). Sotomayor, e.g., was nominated in June -- five months after inauguration day. So, it's quite possible a Clinton appointee would be confirmed earlier than October 2017. And, given that scenario, the "at the earliest" is fairly pessimistic.

As to to earlier date if nothing happens this year, I dissent from that happening, but will continue until it happens take off the table an earlier confirmation. Sotomayor was nominated May 26 and confirmed July 28 - two months. It is unclear if an existing vacancy cannot be filled in FOUR. I'll toss in a few weeks for background checks and the like though Clinton might pick someone who had one already. I find it unlikely, but in theory a Democratic Senate can rush a Garland confirmation in January too.

Plus, there is the scenario that Republicans later in the year see the writing on the wall & realize Trump will lose. They very well might decide there that Garland is the best bet for them. This might also be seen as a useful thing to do for Republicans in close Senate races, the Trump (and in all likelihood Cruz) top ticket drag not helping.

I hope this helps satisfy your curiosity.

Posted by: Joe | Apr 23, 2016 11:32:16 AM

I still am curious what you predict is going to happen that would allow Justice Garland or some Clinton/Trump/Cruz appointee to be in place by the last week of April 2017.

Posted by: Howard Wasserman | Apr 23, 2016 7:55:06 AM

"covering all of next"

I dissent.

But, interesting history lesson. Thanks.

Posted by: Joe | Apr 21, 2016 11:48:54 AM

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