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06/15/2016

A Reply on "The Garland Affair"
Robin Bradley Kar & Jason Mazzone

[Editor's Note: For this guest response, we welcome Robin Bradley Kar, Walter V. Schaefer Visiting Professor of Law at the University of Chicago Law School and Professor of Law and Philosophy at the University of Illinois College of Law, and Jason Mazzone, the Lynn H. Murray Faculty Scholar in Law and Co-Director, Program in Constitutional Theory, History and Law, also at the University of Illinois College of Law.  This post responds to several posts on this blog (see here and here) criticizing Professor Kar and Mazzone's article on the Garland nomination.  In accordance with usual practice (although it is not a constitutional rule!) I will let our guest responders have the last word.]

We would like to thank Michael Ramsey for his recent attention on this blog to our essay, The Garland Affair, which discusses the history of U.S. Supreme Court appointments and the bearing of that history on President Obama’s attempt to appoint a replacement for Justice Scalia. We offer historical evidence that it is unprecedented for the Senate to attempt a deliberate interpresidential transfer of Supreme Court appointment powers (in this case from President Obama to an unelected successor) absent contemporaneous questions about the status of the nominating President as the most recently elected president.

Ramsey focuses attention on the constitutional issues we raise in our essay. This reply will, accordingly, focus on those same issues. Nonetheless, we emphasize that constitutional issues are only one part of The Garland Affair. Our primary claim is that a deliberate interpresidential transfer of Supreme Court appointment powers in current circumstances contravenes more than two centuries of historical tradition. Hence, even if the tradition we identify has not ripened into a constitutional rule, departing from this unbroken historical tradition would mark a much sharper departure from history and internal norms of senatorial fair dealing than has thus far been recognized. In our essay, we go to great lengths to describe the pragmatic costs of such a break to the impartiality and appearance of impartiality of the Judiciary; to well-settled forms of democratic deliberation as they relate to Supreme Court appointments; and to the functioning of our constitutional form of governance. Ramsey is right, though, that we make the further argument that this tradition may have also ripened into a constitutional rule that should inform the best interpretation of constitutional text and structure. If so, then the Senate Republicans’ current plan violates the Constitution as well.

When addressing our constitutional arguments, Ramsey acknowledges that our historical arguments are “strong”. He nevertheless questions our assertion that the evidence we present casts doubt on whether the Senate has the constitutional “power to deliberately divest a sitting President of his Supreme Court appointment powers” as opposed to a constitutional power to provide “advice and consent” on particular candidates (i.e., by confirming, rejecting, or resisting them on the merits, using a wide array of senatorial procedures). According to Ramsey, our characterization of the issue “assumes the conclusion” because—in Ramsey’s word’s—“[t]he President’s ‘appointment powers’ are to nominate a candidate and to appoint a nominee if the Senate gives advice and consent.” But it seems to us that Ramsey’s presentation of the issue itself assumes a conclusion. The Appointments Clause actually says that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . .  Judges of the [S]upreme Court  . . . .” The Appointments Clause also explicitly gives Congress the power to divest the President of some appointment powers and to “vest them as they think proper, in the President alone, in the Courts of Law, or in the Heads of Department.” On the other hand, the Appointments Clause does not give Congress (or any other body) the same divestment power with respect to Supreme Court appointments. So there are two possibilities here. Either—as Ramsey assumes—the Senate’s power to provide “advice and consent” with respect to Supreme Court nominees includes a further power to deliberately divest Presidents of their Supreme Court appointment powers (a power which Congress nevertheless explicitly lacks and no other body is explicitly granted when it comes to Supreme Court appointments). Or it doesn’t. Where text is ambiguous, historical practice can provide needed clarification. Here, as we show in our essay, history would resolve this textual ambiguity in favor of a rule against divestment of Presidents’ Supreme Court appointment powers except in the highly unusual circumstances where there are contemporaneous questions about the status of the nominating President as the most recently elected President.

If this history has further ripened into a constitutional rule, as it may well have, then the Senate therefore lacks the constitutional power to do what it is currently trying to do. Put simply, it cannot deliberately divest President Obama of his Supreme Court appointment powers using any procedures—though it can and should consider and confirm, reject or resist particular candidates based on their merits (such that the end result might actually be no appointment or an appointment only of a second- or third-choice nominee). When it comes to disambiguation, our view does not assume any conclusion in the way that Ramsey’s interpretation does. We explicitly rely on historical evidence to avoid the need for any such assumptions.

Second, Ramsey suggests that “although some Republican Senators may be guilty of rhetorical excess, I think it wrong to say (as Kar and Mazzone do) that the Senate is ‘simply refus[ing] to consider any nominee from a particular President.” Ramsey explains that he is “confident that if the President were to nominate Paul Clement (or even a more moderate but originalist oriented judge) the Senate would consider the nominee.” If this assessment is accurate, it would be a major concession. It would suggest that Senate Republicans are actually resisting Garland on the merits, rather than, as they have repeatedly said, seeking to let the American people weigh in on the appointment through their choice of President in November. If Senators are doing what Ramsey suggests, then that fact raises a number of obvious questions: How exactly do Senate Republicans know to reject Garland, but not Clement, on the merits even though these Senators are not willing to meet with Garland or learn more about his judicial philosophy? And might not the public, told it is being given the opportunity to weigh in on the next appointment, legitimately ask whether Senate Republicans are simply lying? At what point do actions like these go beyond advice and consent with respect to particular nominees to become, as we suggest, an effort to divest President Obama of his undisputed constitutional powers to choose nominees? Finally, why is the Senate breaking its own Rule 31, which suggests that advice and consent is given by the full Senate in response to particular nominees?

Ramsey’s suggestion that Senate Republicans may secretly be using nominees’ explicit commitment to originalist methodology as a litmus test for judicial impartiality raises additional concerns. We agree, of course, that it would be disturbing and rejection-worthy if, after a full vetting, the Senate were to find that Judge Garland is not committed to interpreting the Constitution correctly. We should not allow Justices onto the Court who are willing to let personal or political bias intervene in their legal opinions. But can much more be said than that?

If one is a legal positivist and believes that the content of law is determined completely by social facts, then, as William Baude’s recent work suggests, originalist methodologies may be part of what objectivity in legal judgment requires in our legal system. But Baude’s work is contestable, as is the precise form of originalism that the social facts would require and whether particular judges who do not express an explicit commitment to “originalism” are nevertheless following the right methodology. (Would “living originalist” Jack Balkin satisfy the litmus test? Would “practical originalist” Samuel Alito? Would “faint-hearted” originalist Antonin Scalia? And what about the many judges that Baude claims are implicitly doing the right thing without calling themselves “originalists”?) When questions like these are contestable by the best legal minds, how can the Senate require more of a Justice than to express commitment to getting the law right, using whatever methodologies are appropriate given the right answers to hard questions like these? And if identifying what the law is requires some moral or political insight, as Ronald Dworkin suggests, then perhaps there are normative grounds to accept some form of originalism. Once again, however, that is contestable, as is the precise form and scope that originalist reasoning should play if accepted on these grounds.

More generally, evaluation of methodological approaches and their relationship to impartiality should not occur behind closed doors. Besides the fact that secrecy means we don’t get to know precisely what Senators actually understand originalism and impartiality to be, truly democratic assessment of a nominee’s methodology and its impartiality demands public discussion. How wonderful it would be to have, for example, a confirmation hearing in which a candidate is asked some methodological questions: Do you consider originalism to be the correct methodology to interpret the Constitution? If so, what kind of originalism do you have in mind? How would you go about conducting originalist analysis? What do you do if that analysis does not yield a clear answer to a concrete question? Please give us an originalist interpretation of the following provision of the Constitution: _______” How wonderful to have prominent scholars testify that originalism should be a litmus test and explain why and in what precise form. If, as Ramsey suggests, Garland is disqualified on the basis of methodology, then wouldn’t a confirmation hearing bear that out—such that Obama could then proceed to select a different candidate who is more appropriately dedicated to getting the law right?   

But let us now return to the main issue raised by Ramsey’s remarks, which is whether the unbroken line of senatorial practice that we identify in our essay has ripened into a constitutional rule. The alternative—as Ramsey suggests—is that we have identified only a long-standing and unbroken “courtesy” that the Senate has given every past President in President Obama’s circumstances. If so, then the current Senate Republican plan, which promises not to consider any Obama nominee, is merely a breach of internal senatorial norms of courtesy and fair dealing that have otherwise prevailed since the earliest days of the Republic. As noted, that breach would generate grave pragmatic risks, which have not yet been fully appreciated, and which we discuss in more detail in our essay. But the plan may not raise a further constitutional violation.

So which one is it and how might we know? Ramsey’s other arguments are dedicated to raising doubts about whether the precise historical traditions we identify have ripened into constitutional rules. All of these doubts are essentially epistemic: Ramsey points out that it is hard (perhaps even impossible) to know when historical facts require a conclusion of constitutional ripening. We agree. In fact, in our essay, we point out that this is initially true of all ripening arguments—including all those that have been successful in the past.  Rather than arguing that the Senate Republicans’ current plan definitively violates the Constitution, we therefore propose a more modest conclusion. We suggest that this unprecedented breach from more than two centuries of U.S. tradition presents a “hard” constitutional question—i.e., a novel and unprecedented constitutional question that cannot be definitively settled either way based on the available historical and legal evidence.

But this fact clearly cuts both ways. It explains why Ramsey is right to wonder whether ripening has taken place and it explains why it would be irresponsible for Republican Senators simply to dismiss any risk of a constitutional violation outright. In our essay, we therefore conclude:

Fortunately, there remains an easy way to avoid the pragmatic and constitutional risks that loom large. The Senate can simply follow the path that its predecessors have taken in every analogous situation in the past [including the case of Abe Fortas] and proceed to full Senate consideration of President Obama’s nominee (or nominees) to fill the Supreme Court vacancy. The Senate can similarly exercise its undisputed power to confirm, reject or resist Obama’s particular Supreme Court nominees on the merits. Any further efforts to deliberately and completely divest President Obama of his constitutionally-designated power to appoint Justices to the Supreme Court should, however, be abandoned.

One last point. From among his epistemic arguments, the one that Ramsey finds the most compelling is to question whether historical traditions can ripen into constitutional rules when they “create a constitutional limitation that does not exist in the Constitution itself” as opposed to relaxing “stricter separation of powers rules apparently imposed by the Constitution.” If this were true, then it would still be a hard question whether the historical tradition we identify has ripened into a constitutional rule. There is, moreover, nothing we can find in the ripening jurisprudence that suggests the limitation Ramsey proposes. To the contrary, in his concurrence to NLRB v. Noel Canning, Justice Scalia wrote much more generally that: “Of course, where a governmental practice has been open, widespread, and unchallenged since the early days of the Republic, the practice should guide our interpretation of an ambiguous constitutional provision.” 134 S. Ct. 2550, 2594 (2014) (Scalia, J. concurring, joined by Thomas, Alito & Roberts, JJ.). In NFIB v. Sebelius, Justice Roberts similarly explained that the Commerce Clause did not give Congress the authority to enact the individual mandate provision of the Affordable Care Act in part for the simple reason that “sometimes ‘the most telling indication of [a] severe constitutional problem . . . is the lack of historical precedent’ for Congress’s action.” 132 S. Ct. 2566, 2586 (2012) (citation omitted). Here, precedent for the Senate Republicans’ plan is entirely lacking.

The deeper point, though, is that first principles matter. Because the federal government is one of limited and enumerated powers, there is a pressing question here: From where precisely does the Senate get the unprecedented power that it is currently asserting to completely and deliberately extinguish President Obama’s Supreme Court appointment powers? Neither text nor history point to any such senatorial authority.

 We thank Professor Ramsey for offering us a chance to reply here.

Note: For those who are interested in further discussion of these issues, we note coverage in the NY Times (“Study Calls Snub of Obama’s Supreme Court Pick Unprecedented”) and the Huffington Post (“The Senate Republicans, Merrick Garland, and the Lessons of History”). As Ramsey has noted earlier, Ed Whelan has also posted a six-part critique of our essay in the National Review (“Kar/Mazzone on Senate Duty on Supreme Court Vacancies—Part 6”—with links to earlier posts). Those critiques focus primarily on the non-constitutional aspects of our argument. Our response, also published in the National Review, is here.