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03/17/2016

Panel on the Scalia Vacancy
Mike Rappaport

At the University of San Diego Law School, the American Constitution Society recently held a panel discussion on the issues raised by the Justice Scalia vacancy.  The panel included Don Dripps, Larry Alexander (who was plagued by laryngitis), and myself.

I started off arguing that the original meaning of the Constitution does not require the Senate to act on any nomination made by President Obama.  The language of the Advice and Consent provision certainly does not support it.  The text of the provision states: “He shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the Supreme Court, and other Officers of the United States.”  Obviously, this merely requires that a Supreme Court Justice be confirmed before being appointed.  It does not require that the Senate act in response to a nomination.

I also argued that this reading of the provision accords with similar parts of the Constitution.  For example, when the House of Representatives passes a bill, there is no obligation for the Senate to vote on or even to consider that bill.  While the Constitution states that the President may “recommend to [Congress’s] consideration such measures as he shall judge necessary and expedient,” no one believes that Congress must respond to these recommendations.  In fact, the Constitution does occasionally specify an obligation to respond and consequences from failing to respond.  In the veto provision, the President is given 10 days to approve or veto a bill, and if he fails to act, the bill is treated as passed (unless the Congress is not in session).  A comparison of this provision with the Constitution’s silence about any Senate’s obligation to respond to a nomination is instructive. After making this point at the panel discussion, I was pleased to see that Vik Amar made the same point in print.

Interestingly, Don Dripps, the liberal on the panel, did not disagree with any of this.  While there are some law professors who argue otherwise, such as Larry Tribe and Erwin Chemerinsky, my sense is that their’s is a minority view.

One issue that came up was what accounted for the liberal drift in Supreme Court justices appointed by Republicans (Blackman, Stevens, Souter).  Larry Alexander argued that it is less sexy to enforce the original meaning than to invent new rights.  Perhaps, but my view is that the dominant liberal legal culture is the explanation.  Unless people were strongly committed for a long period to a minority view, such as originalism, they would be influenced by that dominant legal culture and the goodies it can provide.  Part of what the Federalist Society and other groups that make up the right wing legal culture are doing is providing an alternative place where right wing lawyers and judges can participate in an alternative legal culture.

A final question involved possible reforms of the system.  One reform that I support would be to have 18 year terms for the Supreme Court justices, with a new justice retiring every 2 years.  That would limit the length of time the justices would serve, making each appointment less consequential.  It would also allocate the appointments evenly to each President, eliminating the problematic situation where justices decide when to retire based on their desire whether to give the sitting President the opportunity to fill the vacancy.