Author:Tobias, Carl

Justice Antonin Scalia's death prompted United States Senate Majority Leader Mitch McConnell (R-Ky.) and Judiciary Committee Chair Chuck Grassley (R-Iowa) to argue that the President to be inaugurated on January 20, 2017--not Barack Obama--must fill the empty Scalia post. (1) Obama in turn expressed sympathy for the Justice's family and friends, lauded his consummate public service, and pledged to nominate a replacement "in due time," contending that eleven months remained in his administration for confirming a worthy successor. (2) Obama admonished that the President had a constitutional duty to nominate a superlative aspirant to the vacancy, which must not have persisted for more than one year, while the Senate had a constitutional responsibility to advise and consent on the nominee proffered. (3) Because this dynamic affected efficacious Supreme Court operations and precipitated a constitutional standoff, the issue merits analysis.

Part I surveys the Constitution's words, policy, practical and political considerations, history, and custom. It ascertains that numerous phenomena demonstrate Obama should have recommended, and did expeditiously tap, a highly competent prospect whom the Senate ought to have promptly and carefully scrutinized. Although President Obama nominated U.S. Court of Appeals for the District of Columbia Circuit Chief Judge Merrick Garland on March 16, the upper chamber majority steadfastly refused to consider the nominee. Therefore, the piece investigates suggestions, especially for breaking the gridlock and according Judge Garland Senate review, which chamber members should have followed but did not consider.


    Article II is clear: the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the Supreme Court." (4) The document assigns the chief executive power to affirmatively initiate selection. The Constitution also checks White House recommendation of judicial picks who lack the requisite qualifications by making the Senate advise and consent on the President's nominees, (5) but it excludes specific procedures for how lawmakers might discharge these responsibilities, thus allowing senators to institute or eschew a process. (6)

    The Constitution in fact lacks any time sequence for exercising this presidential duty. Should the chamber reject or ignore the first nominee, the President may tender others until the Senate agrees to a nominee. The document concomitantly enables the President to use recess appointments in duly filling vacancies that materialize when the chamber recesses. (7) However, senators now employ "pro forma" sessions, which leave the body perpetually in session, thereby denying Obama a recess appointment. (8) The President declared that a recess appointment was unnecessary because considerable time remained during his tenure for selecting and confirming a preeminent replacement. (9)

    Policy and practical concerns also favor expediently seating Justices. The High Court, perhaps more than any tribunal, needs its full complement of members to operate efficiently. Filings are substantial, with the Court receiving 7,000 certiorari petitions annually from which it selects 100 for comprehensive treatment. (10) Equally important, when the Justices are closely divided on plentiful questions, as today, 4-4 splits occur. This conundrum allows lower court opinions to govern and could leave numerous matters unresolved for extended times, while the problem squanders judicial resources directly necessitated by later reargument of many cases. (11) Indeed, two clear examples had already arisen by March 2016: issuance of the 4-4 opinion in Friedrichs v. California Teachers Ass 'n (12) and of the unusual order which requested supplemental briefing in Zuhik v. Bunveil. (13) Waiting until the next President nominated and confirmed a successor meant that the new Justice might not actually join the Court until October 2017, relegating the Justices to working absent a full contingent for one and a half Terms. (14)

    Political factors deserve consideration as well and supported expeditiously filling the opening. The Republican Party's refusal to scrutinize a nominee recommended by the Democratic President ostensibly so a chief executive from its party would have the opportunity to appoint the Justice might undermine public confidence about the selection process, the Court, and the Senate. Chief Justice John Roberts has always been concerned as to citizen perceptions that the Justices seemingly are politicians while the Supreme Court appears like a political branch. (15)

    Senator McConnell's claim that the next President must replace Scalia to give the public some voice in the selection process and Grassley's corresponding assertion that Justices have not received confirmation during a presidential election year lacked support. (16) First, the people had already spoken twice--in 2008 and 2012--by electing Obama President. Second, constitutional wording makes no distinct provision for selection across a President's concluding year, while specifically inserting a recess appointments clause, which envisions that appointments can happen any time over a presidency's duration. (17) The historical record offers clear illustrations throughout America's existence of Justices whom the Senate confirmed in presidential election years. (18) In 1932, Herbert Hoover appointed Benjamin Cardozo; during 1940, Franklin Roosevelt confirmed Frank Murphy; and in 1956, Dwight Eisenhower recess appointed William Brennan whom the Senate did ultimately confirm. (19) The most recent, pertinent instance was Anthony Kennedy whom Ronald Reagan appointed on a 97-0 vote his final year when Democrats enjoyed a chamber majority. (20)

    In short, the arguments for employing Supreme Court nomination and confirmation procedures were more convincing than reasons which favored delay, although the parties share considerable responsibility for the confirmation wars and concomitant dilatory appointments. Therefore, Part II offers suggestions for proposing and scrutinizing High Court nominees and breaking gridlock.


    1. Regular Order

      As demonstrated in Part I, it was preferable that the chief executive swiftly nominate a prospect to replace Scalia and the chamber promptly advise and consent by meticulously canvassing the selection. The President quickly sent a very qualified designee, as he promised. (21) Obama's tapping of a sitting circuit judge, like nearly all present Supreme Court members, facilitated Senate consideration, as the Federal Bureau of Investigation (FBI) background check and American Bar Association (ABA) evaluation only needed to be updated. (22) The President's Counsel had already compiled a "short list" of individuals for his assessment. (23) The executive continued its assiduous consultation with and cultivation of both parties' senators, especially leaders and committee members, pursuing guidance regarding both nomination and confirmation generally and specific potential nominees. (24)

      Senator Grassley initially remarked that he intended to await the President's nomination before deciding whether the committee would schedule a public hearing. (25) Nevertheless, the Chair swiftly reneged on that promise. (26) For the reasons documented in Part I, (27) the senator should have relented and promptly set a hearing for Judge Garland.

      The Judiciary Committee needed to stringently analyze the nominee by cooperating with the FBI, the ABA, and the Justice Department. (28) Once those entities concluded their investigations, the panel should then have conducted a several-day hearing which permitted members to robustly query the nominee. (29) Of course, while senators may probe any subject, certain questions are conventionally considered improper. Most obvious are queries that seek a nominee's views concerning topics which encompass issues, such as abortion, criminal law, and immigration, which the Justices currently are examining or may confront over the nominee's tenure. (30) The nominee might decline to answer by responding that the individual could evaluate the matter when a Justice, deferring so the nominee could avoid recusal, if confirmed. Different questions appear less clear. One area relates to the nominee's ideological perspectives. (31) Queries which explore those views could be improper, but many senators and close observers find them appropriate, even though legislators who probe ideology often seem to do so for partisan reasons. (32)

      The Chair next ought to have expeditiously arranged a panel discussion and speedy ballot. All committee members routinely participate and the debate is often somewhat lengthy, controversial, and rigorous. Following comprehensive discussion, the panel votes. Even when there is a tie or negative ballot, the committee has typically sent nominees to the floor. Recent examples include then-Circuit Judge (now Justice) Clarence Thomas and Circuit Judge Robert Bork. (33)

      It was unclear whether the chamber would have blocked a floor debate and vote by mounting a filibuster. Republican presidential candidate Senator Ted Cruz (R-Tex.) proclaimed quickly after Scalia died that he would effectuate a filibuster. (34) Obstructing ballots for Court nominees has been rare. The first modern illustration occurred in 1968, when the GOP employed this measure to defeat President Lyndon Johnson's nomination of Supreme Court Justice Abe Fortas to the vacant Chief Justice post. In 2006, then-Senator Obama and his party colleagues filibustered Justice Samuel Alito's nomination to the Court. (35) If Republicans had decided to filibuster, the nominee must have earned fourteen GOP votes for cloture. (36) McConnell insisted that Obama should not be permitted to appoint Scalia's replacement. (37)

      However, prior Senates have arranged many confirmation...

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