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Ed Whelan on Kar & Mazzone on the Senate and Appointments
Michael Ramsey

At NRO, Ed Whelan has a six-part series sharply critiquing Robin Bradley Kar & Jason Mazzone's article The Garland Affair: What History and the Constitution Really Say About President Obama's Powers to Appoint a Replacement for Justice Scalia.  It's too detailed to excerpt effectively, but here are the posts:

part 1

part 2

part 3

part 4

part 5

part 6

As Whelan summarizes in part 1,  Professors Kar and Mazzone purport to find a historical practice that:

Whenever a Supreme Court vacancy has existed during an elected President’s term and this President has acted prior to the election of a successor, the sitting President has been able to both nominate and appoint someone to fill the relevant vacancy—by and with the advice and consent of the Senate. [Kar & Mazzone's phrasing]

Particularly in part 3, he takes a look at their data (contained in an appendix) and doubts that such a practice exists (in particular, Kar and Mazzone seem to have trouble accounting for the failed nomination of Abe Fortas to be Chief Justice).

My prior thoughts on the Kar/Mazzone article are here: Can Custom Create a Constitutional Duty?  I think it's problematic on two grounds:

(1)  While it may be the case that historical practice can produce a constitutional rule (and it may even be the case that originalists should be willing to consider such rules as modifying the original meaning in some situations), reliance on historical practice is difficult because it may be impossible to say what the relevant historical practice is.  The Kar/Mazzone article illustrates this problem, as Whelan explores.  To give two examples, (a) they consider only nominations by an elected President, and (b) they consider only nominations for "actual" vacancies (that is, not ones where a Justice resigns effective upon the confirmation of a successor).  But why should these situations be excluded from consideration?  (Whelan calls it "gerrymandering," and there's something to that.  But I think the problem is deeper: it's not that Kar and Bradley are neessarily doing it wrong; it's that there is literally no way to decide which is right (that is, how narrowly or broadly to read the prior practice).

I explore this problem in more detail in this article: The Limits of Custom in Constitutional and International Law.

(2)  I think there is further difficulty with Kar and Mazzone's contentions that Whelan only touches on.  He asks (in part 5): how are we to know this practice, even if exists, is a constitutional rule?  I would add this:  it is commonly argued that practice can establish a constitutional rule, but that argument usually arises when the practice relaxes  a rule set forth in the text.  That is, practice is permissive.  Kar and Mazzone want to make practice constraining (that it mandate rather than allow action).  This seems to me to be very unusual, at least in the separation of powers area.  As I put it in my prior post:

[T]his [article] raises an interesting theoretical question I had not considered before.  Is it possible for custom to create a constitutional limitation that does not exist in the Constitution itself?  Constitutional custom, of course, is often invoked, especially in separation of powers debates.  But the paradigm is for custom to relax stricter separation of powers rules apparently imposed by the Constitution.  The most cited invocation of custom, for example, is Justice Frankfurter's "historical gloss" in the Steel Seizure case, where he contended that Congress' implied consent to a longstanding executive practice might convey power to the executive even where the Constitution did not expressly do so.  Most other examples I can think of are similar: presidential war powers (the President is arguably allowed to use military force in ways not contemplated by the original Constitution); executive agreements (the President can make international agreements without the Senate's consent in ways not contemplated by the original Constitution); independent agencies (Congress can create agencies protected from presidential oversight in ways not contemplated by the original Constitution); recess appointments (per Noel Canning, President can make recess appointments in ways not contemplated by the original Constitution).

Professors Kar and Mazzone suggest something very different: that customary practice might create a constitutional limit on one branch's actions that the original Constitution does not impose.  Is this an argument that is commonly made?  I cannot think of many examples.  Consider, for example, the longstanding practice (before 1940) that a twice-elected President would not stand for election a third time.  Did this practice create a constitutional rule where one did not previously exist, or was it just a practice?  I would say the latter -- it took the 22nd Amendment to make it a constitutional rule.  (Otherwise Franklin Roosevelt's last two terms were unconstitutional, which I think Professors Kar and Mazzone probably do not want to claim).

Among other problems with finding a limiting rule from practice, it's hard to know what the people creating and following the practice think about it.  If they themselves do not think of it as a constitutional rule, but only as a courtesy, then it can't become a customary rule.  In international law, where limits do arise from custom, this is reflected in the idea of "opinio juris" -- the practice isn't binding unless the relevant actors think it is binding.  So even if Kar and Mazzone are right about the practice, is there any evidence that the Senate in following the practice thought it was creating a binding rule?

On further reflection, I think this criticism is hard to answer.  The two situations are fundamentally different.  Where practice relaxes a prior rule, the relevant actors often understand that they are taking a step of constitutional significance, deliberating rejecting a stricter alternative rule.  But when the relevant actors are doing something not previously required by the Constitution, how can we say that they are changing the rule, as opposed to just acting within their discretion?  So I would say (with Whelan) that even if Kar and Bradley are right about the practice, they are wrong about its significance.