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06/10/2016

Kar & Mazzone's Response to Whelan on the Senate and Appointments
Michael Ramsey

At NRO, Robin Bradley Kar and Jason Mazzone have a lengthy response to Ed Whelan's six-part critique of their article on filling Supreme Court vacancies.  It begins: 

In our essay, we consider Senate Republicans’ current plan to transfer President Barack Obama’s constitutionally designated power to appoint a replacement for Justice Scalia to an unknown successor. We set forth evidence showing that the Senate has never before attempted or effected such a deliberate inter-presidential transfer of power except in circumstances where there were contemporaneous questions about the status of the nominating President as the most recently elected President. No such questions exist with respect to President Obama’s nomination of Judge Garland to replace Justice Scalia. Hence, the Senate Republicans’ current plan marks a much greater departure from more than two centuries of historical precedent than has thus far been recognized. 

Whelan does a nice job of summarizing our main points in his first introductory post. As virtually all commentators—including Republican leaders—agree, history matters when determining the propriety and prudence of the Senate Republicans’ current plan. History can help clarify internal senatorial norms of fair dealing. History can also ripen into a constitutional rule that informs the best interpretation of constitutional text and structure. Accordingly, the historical tradition we identify clarifies pragmatic and constitutional risks with the Senate Republicans’ current plan that have not yet been fully appreciated. We suggest that Senate Republicans should rethink their current plan in light of these facts and—at the very least—explain why such risks do not weigh in favor of adhering to the practices the Senate has always followed with respect to Supreme Court appointments from the earliest days of the Republic. Our analysis and conclusions are deliberately apolitical. Were Senate Democrats to hatch a plan to transfer a Republican President’s Supreme Court appointment power to an unelected successor, we would deem it equally unprecedented and unwise. We also offer no view on whether, at the end of an appropriate process, Senators should vote to confirm Judge Garland.

In his series of posts, Whelan promises to show that our essay “provide[s] no reason for Senate Republicans to reconsider their course on the Garland nomination” (emphasis added). But for reasons we discuss below, Whelan does not deliver on this promise. Whelan brings his characteristic intelligence to bear on these issues, and he engages very carefully with our evidence and conclusions. As the leader of one of the nation’s preeminent conservative think tanks, Whelan has plenty of incentive to show we are wrong. Despite all of this, our analysis emerges undented—thus suggesting that the problem we describe in the essay is perhaps even more acute than we initially posited.

(The response is also available on SSRN here).

It's a strong response on the historical aspects of the debate, on which I have no particular expertise to comment.  I'll add just one thought:

Professors Kar and Mazzone describe the question as whether the Senate has "power to deliberately divest a sitting President completely of his Supreme Court appointment powers."  (This is from section 4 of their response, but it's repeated in substantially those terms elsewhere).  I think this is tendentious phrasing for two reasons.  First, it assumes the conclusion.  The President's "appointment powers" are to nominate a candidate and to appoint a nominee if the Senate gives advice and consent.  That is all the Constitution's text says on the matter.  Clearly President Obama retains these powers.  Kar and Mazzone want to use practice to create an additional presidential power to (I guess) make a nomination the Senate seriously considers, or maybe it's to fill the vacancy (they still seem a little unclear on what the President's power is).  It seems that they should instead state the issue in a straightforward way that doesn't assume any powers: must the Senate give individualized consideration to nominees?  The Constitution's text does not impose any such requirement (as I have argued), but perhaps practice does. 

Second, 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."  I'm 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.  The Senate majority is refusing to consider the President's nominee, not because it holds a grudge against the President or doubts the President's legitimacy, but because it lacks confidence in the President's willingness to nominate a person with the judicial philosophy that the majority prefers.  So I would say that the question is whether the Senate can decide categorically that it doesn't think the President will nominate the sort of people the Senate wants to see appointed, or whether the Senate has to make this determination individually, and vote down nominees one by one.

Put that way, Kar and Bradley would have a reasonable argument that in the past the Senate has always considered Supreme Court nominees individually (subject to the exceptions they explain away).  As indicated here, I would still have trouble seeing this as a constitutional rule as opposed to just a courtesy.  But it does seem worth pointing out, as a matter of political science if not law, that something new is (or at least might be) going on here (regarding Supreme Court nominations; my impression is that this happens all the time for other nominations).  That, however, does not make it unconstitutional.