Robin Bradley Kar & Jason Mazzone: Why President Obama Has the Constitutional Power to Appoint - and Not Just Nominate - a Replacement for Justice Scalia (UPDATED)Michael Ramsey

Robin Bradley Kar (University of Illinois College of Law) & Jason Mazzone (University of Illinois College of Law) have posted Why President Obama Has the Constitutional Power to Appoint - and Not Just Nominate - a Replacement for Justice Scalia on SSRN.  Here is the abstract:     

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 McConnel[l] - 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.

This article is a big improvement on prior claims that the Senate is acting improperly, in the sense that it actually offers an argument rather than just an assertion (compare, for example, here).  Unfortunately, though, in my view its argument is thoroughly unpersuasive.

(1) To begin, the word "delegation" is a misnomer.  A delegation is when one person or entity has a power and grants that power to another person or entity (as, most prominently, if Congress delegates legislative power to the President).  Thus it's wrong to say that the Senate action even arguably "works a delegation of an elected President’s Supreme Court appointment power to an unknown successor."  The Senate has no "Supreme Court appointment power" to delegate.  Rather, the claim is that the Senate action transfers (not delegates) the President's appointment power to a successor.

(2) While point #1 might seem like a quibble, it's not.  Once the correct word is used, it should be clear that there is no transfer of power.  President Obama's power is to nominate and, with the Senate's consent, to appoint.  (I'm omitting the "advice" issue here as I've discussed it elsewhere and it does not seem relevant to the Kar/Mazzone argument).  President Obama continues to have that power (as will his successor, if the vacancy is not filled).  No power has been taken away, transferred or granted by the Senate's failure to act.  The only way one could think otherwise is if one thought that the Senate had an obligation to formally consider the nomination in the first place.  But the point of the article is to show that the Senate has an obligation to consider the nomination -- so the entire argument is circular.  If the Senate doesn't have an obligation to act on the nomination (and the text imposes none) then its failure to act on the nomination doesn't transfer (or, obviously, delegate) any power to anyone.

(3) Like many arguments on this point, the article appears to be focused just on Supreme Court nominations.  But as Seth Barrett Tillman has argued, there is only one appointments clause.  There is no textual basis for believing that the Senate's obligations with respect to Supreme Court nominations are different from its obligations with respect to all other presidential nominations.  Yet as the authors surely know, the Senate during the Bush administration refused to formally consider multiple lower court nominations, and the Senate commonly fails to act on executive branch nominations for a variety of reasons.  Perhaps the authors believe these refusals are unconstitutional (but that point should be acknowledged more directly if it is intended).

(4) In any event, the article's final conclusion seems a non sequitur: that the Senate should "consider and vote upon Garland or any other timely submitted nominee" (emphasis added).  Even if the Senate has a duty to consider the nomination (and I cannot see how the text imposes such a duty), surely nothing requires that the duty be fulfilled by a formal vote.  Why can't the Senate informally decide, through its duly elected officers, that the nomination does not need formal consideration?  As Vikram Amar has forcefully argued, the Constitution in multiple places provides that a certain thing is accomplished if a given body consents, and in none of those places do we understand this phrasing to impose a duty to vote on the proposal.  To repeat his argument (because it seems so decisive):

If we look at other constitutional settings in which one entity must consent to the proposal of another actor before the proposal can take legal effect, we have as a general matter not inferred any duty on the part of the second actor to do anything. For example, no credible argument can be made that after the House of Representatives passes a bill and sends it to the Senate for consideration, the Senate must hold hearings and/or take votes. Or that the Senate has a duty to take up a treaty desired by the president. Or that state legislatures have a duty to debate and vote on federal constitutional amendments that Congress proposes (and that require ¾ of the states to ratify before they can take effect). In fact, in one place the Constitution does seem to create a duty on the second actor to make an up-or-down decision; if the president does not return a bill passed by Congress to Congress with reasons for his veto within 10 days, the bill becomes law. So when the Constitution seeks to attach some legal consequences to inaction within a particular timeline, it seems to know how to say so.

Or, as Thomas Sowell argues here, "the 'advice and consent' provision of the Constitution is a restriction on the President's power, not an imposition of a duty on the Senate. It says nothing about the Senate's having a duty to hold hearings, or vote, on any Presidential nominee, whether for the Supreme Court or for any other federal institution. The power to consent is the power to refuse to consent..."

The short of it is that the President has power to appoint if the Senate consents and has no power to appoint if the Senate, for whatever reason and in whatever manner, fails to consent.  The Constitution says nothing more on the matter.

UPDATE:  Seth Barrett Tillman points out that Kar and Mazzone suggest (p. 24):

The only remaining lapsed appointments relate to judges on lower federal courts. Federal judges are not inferior officers and they have Article III protections. These appointments are nevertheless distinguishable from Supreme Court appointments because the Constitution creates the Supreme Court whereas lower federal courts are created by legislative act. Once again, Congress’s greater power to create or extinguish lower courts therefore arguably includes the lesser power to allow the Senate to let certain late appointments to those courts lapse shortly before a presidential transition. However, the Supreme Court remains distinct.

This seems weak on two grounds.  First, if the Senate has a duty to consider and vote on presidential nominees as a result of Article II, Section 2, I do not see how Congress could alter this duty.  The Constitution gives Congress express ability to alter the appointment process in specified ways with respect to some appointments, but this is not one of those ways nor one of those appointments.  No one thinks that Congress has the ability to alter the appointments process for lower federal judges in other respects, merely because Congress can choose not to create lower federal courts in the first place.  In creating lower federal courts (and other offices), Congress necessarily accepts the Constitution's appointments process (else what would be the point of spelling out the appointments process in the Constitution?).  Second, even if Congress has such a power, it hasn't exercised it.  Congress hasn't purported to say anything about how the Senate should approach confirmations.  Perhaps the contrary is "arguabl[e]," as Kar and Mazzone say (if one were, for example, counsel to the Democratic Party), but it seems far from the best interpretation of the relevant clauses.

I also don't see how the Kar/Mazzone argument deals with, for example, Senate consent to treaties (a point Professor Amar raises).  The treatymaking clause is parallel to the appointments clause (apart from the two-thirds requirement).  Congress has no special authority in the area.  Yet the Senate has failed to vote on treaties submitted for its consent by the President, and this has not generally drawn sustained constitutional objection.

I think the Kar/Mazzone paper would be much stronger if they followed it to its logical conclusion, namely that Senate failure to vote on any nominee (or treaty) would be a constitutional violation.  Trying to create an argument tailored only to the issue of current interest makes it look like they are ... trying to create an argument tailored only to the issue of current interest.

A FURTHER THOUGHT: Actually, while the Constitution creates the Supreme Court, Congress creates the ninth seat on the Court.  Just as Congress could constitutionally abolish the lower federal courts, it could constitutionally abolish the ninth seat on the Court.  So if one (implausibly, in my view) thinks that "Congress’s greater power to create or extinguish lower courts therefore arguably includes the lesser power to allow the Senate to let certain late appointments to those courts lapse," that should also be true of the Court's (optional) ninth seat.