The Possibility of Rejection: the Framers' Constitutional Design for Supreme Court Appointments

• Publication year: 2022

51 Creighton L. Rev. 539. THE POSSIBILITY OF REJECTION: THE FRAMERS' CONSTITUTIONAL DESIGN FOR SUPREME COURT APPOINTMENTS

THE POSSIBILITY OF REJECTION: THE FRAMERS' CONSTITUTIONAL DESIGN FOR SUPREME COURT APPOINTMENTS

ERIC T. KASPER(fn*)

I. INTRODUCTION

The nomination and confirmation of a United States Supreme Court Justice is a rare moment in American politics where the Constitution requires the selection of a member of one branch of government by the other two branches. On February 13, 2016, Justice Antonin Scalia died at the age of seventynine, creating a vacancy on the Court.(fn1) The same day that Justice Scalia's death was announced, posturing began on when and how his vacated seat on the Court would be filled, and who should nominate his successor. Republican Senate Majority Leader Mitch McConnell announced that the "American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new [P]resident."(fn2) Republican Senate Judiciary Committee Chair Chuck Grassley reinforced this position by claiming that "[t]his [P]resident, above all others, has made no bones about his goal to use the courts to circumvent Congress and push through his own agenda. It only makes sense that we defer to the American people who will elect a new [P]resident to select the next Supreme Court Justice."(fn3)

President Barack Obama, however, held a press conference that evening in which he stated, "I plan to fulfill my constitutional responsibilities to nominate a successor in due time," asking "the Senate to fulfill its responsibility to give that person a fair hearing and a timely vote."(fn4) Senate Democratic Minority Leader Harry Reid expressed his support for the President's position as well, asserting that the "President can and should send the Senate a nominee right away," because it "would be unprecedented in recent history for the Supreme Court to go a year with a vacant seat. Failing to fill this vacancy would be a shameful abdication of one of the Senate's most essential [c]onstitutional responsibilities."(fn5)

Just over one month later on March 16, 2016, the President nominated the sixty-three-year-old Chief Judge of the United States Court of Appeals for the District of Columbia, Merrick Garland, who has served on that court since 1997.(fn6) During the announcement, the President invoked the Constitution several times, describing how, of "the many powers and responsibilities that the Constitution vests in the Presidency, few are more consequential than appointing a Supreme Court [J]ustice."(fn7) He went on to "ask Republicans in the Senate to give [Garland] a fair hearing and then an up-or-down vote," because if they failed to do this, "it will not only be an abdication of the Senate's constitutional duty, it will indicate a process for nominating and confirming judges that is beyond repair."(fn8) He closed his remarks by proclaiming, "I have fulfilled my constitutional duty. Now it's time for the Senate to do theirs."(fn9)

Senator McConnell responded in the Senate the same day, proclaiming that it "is a [P]resident's constitutional right to nominate a Supreme Court Justice, and it is the Senate's constitutional right to act as a check on a [P]resident and withhold its consent."(fn10) Judiciary Chair Grassley agreed, saying that "[t]oday the President has exercised his constitutional authority. A majority of the Senate has decided to fulfill its constitutional role of advice and consent by withholding support for the nomination during a presidential election year, with millions of votes having been cast in highly charged contests."(fn11) On the other side of the aisle, Democratic Minority Leader Reid confirmed his support for the President: "The American people expect their elected leaders to do their jobs. President Obama is performing his constitutional duty. I hope Senate Republicans will do theirs."(fn12)

Interest groups weighed in as well. Liberal organizations-such as EMILY's List, the American Constitution Society, and the NAACP-were supportive of Judge Garland and made public comments that the Senate had a constitutional requirement to act on the nomination.(fn13) Conservative interest groups-such as the American Conservative Union, National Right to Life, and the Judicial Crisis Network-issued statements supportive of Senate Republicans not confirming the nominee, or any nominee, until after the presidential election; in some cases these groups claimed that constitutional issues they cared for would be decided unfavorably if Garland were confirmed to the Court.(fn14) In response, the White House created the first Twitter account in support of a Supreme Court nominee, "@SCOTUS-nom"; some of the tweets proclaimed the President's "constitutional duty" to nominate a United States Supreme Court Justice and called upon Senators to "meet their constitutional duty" as well.(fn15) Vice President Joe Biden stated that if the Senate would not act on the Garland nomination, it "could lead to a genuine [c]onstitutional crisis born out of the dysfunction of Washington."(fn16) It appears that most members of the public agreed with the White House at the time of the nomination. In a national CNN poll taken in the days after President Obama nominated Judge Garland, fifty-two percent of survey respondents wanted to see him confirmed, fifty-seven percent thought President Obama should make the nomination (as opposed to the next President making it), and sixty-four percent thought confirmation hearings should be held for Garland.(fn17) Nevertheless, Garland was not given a confirmation hearing or a floor vote. When it appeared the Democratic candidate Hillary Clinton might win the Presidency, Texas Republican Senator Ted Cruz even insinuated that the Senate could refuse to confirm any Supreme Court nominees during her term, stating that there is "certainly long historical precedent for a Supreme Court with fewer [J]ustices."(fn18) Garland's Court nomination expired on January 3, 2017, leaving Scalia's successor to be nominated by President Donald J. Trump.(fn19)

From the outset of this vacancy occurring on the Court, the President, key Senators, other political leaders, and various interest groups all proclaimed that the position they supported-whether it was making a nomination during a presidential election year or refusing to confirm a nominee-was either mandated by the Constitution or was a right granted to the President or the Senate under the Constitution. However, beyond the relatively vague and brief text of Article II that deals with the appointment of United States Supreme Court Justices, what does the Constitution dictate or allow in this process? What did the Framers of the Constitution have in mind with United States Supreme Court appointments?

This Article will recount the discussions and compromises at the 1787 Constitutional Convention over the federal judicial appointment process and the consensus the Framers formed that summer over the power the President and the Senate would exercise. Section II will provide the historical context of the Constitutional Convention, including explaining how the judiciary fit into the larger scheme of the separation of powers, exploring how judicial appointments fulfill the Framers' concerns with protecting judicial independence, and introducing the five factors the Framers emphasized when deliberating over the structure of judicial appointments. Section III then discusses the Framers' desire that the process they created would lead to high nominee quality, including nominees who had requisite knowledge, experience, and ethics. Section IV examines how the Framers thought political beliefs would be factored into the appointment process. Section V looks at the Framers' emphasis on nominee representativeness, broadly defined. Section VI uses the Framers' statements to demonstrate that they thought the judicial appointment process they created would be proper because it ensured both the President and the Senate would check and balance each other, thus reinforcing a goal incorporated throughout the Constitution. Section VII then examines the role the Framers thought public input and feedback would play in the process. Finally, Section VIII returns to the Garland nomination to examine how that confirmation battle fit into the larger context of what the Framers desired with respect to United States Supreme Court appointments, as well as how that nomination shaped President Trump's nomination of Judge Neil Gorsuch. As the paragraphs below will demonstrate, many of the alterations over time to the Supreme Court selection process are the result of constitutional changes since the 1780s, both in terms of subsequently ratified constitutional amendments and in terms of new interpretations of the Constitution by the Court itself. However, the general contours of the original system endure, and the same types of considerations the Framers wanted Presidents and Senators to have remain important.

II. JUDICIAL APPOINTMENTS WITHIN THE CONTEXT OF THE SEPARATION OF POWERS AND JUDICIAL INDEPENDENCE

Relatively early during the 1787 Constitutional Convention in Philadelphia, the delegates decided that a national supreme court was necessary and that the judges on that court would be appointed rather than elected.(fn20) However, the delegates spent nearly the entire convention disagreeing over...