This Precedent Must Not Stand: New Thoughts on the Supreme Court Vacancy...

This Precedent Must Not Stand: New Thoughts on the Supreme Court Vacancy Crisis


Since posting the piece yesterday on “How Obama Can Break the Supreme Court Impasse,”  I’ve had two related adventures on the topic.


The first was purely internal: a piece of detective work conducted in my own mind.

I imagine other people must have already thought of this, but it was only last night that it dawned on me what the implications are of how swiftly, after the death of Justice Scalia, Mitch McConnell announced the Republican refusal to consider any nominee President Obama could put forward.

Until last night, I’d just been struck, and offended, by how quickly McConnell politicized the death of Scalia—before the body was cold, as the saying goes. But then I had a realization: McConnell could act so swiftly only because he was executing a plan that had long been decided.

McConnell is not an impulsive man. This is not something he would have decided in the few hours after the Court vacancy opened up. The Republicans had foreseen such an eventuality, and had a plan in place to deal with it.

It’s easy to see what would motivate the Republicans to make such a plan. With the conservatives controlling the Court with a 5-4 majority, then if any of the conservative five were to vacate his seat, the President would be able to switch control of the Court to the liberal side.

So as the Republicans saw that looming possibility, they must have decided in advance: “Whatever it takes to maintain control of the Court, we will do.” Hence the need for a plan to prevent the president from filling the vacancy that might be created by the death of one of the right-wing justices.

How long was this plan in place? If Scalia had died in January of 2015, would this same plan have been put into effect? My guess is, yes: the Republicans would have had to skip some of their bogus justifications (“last year of his term”), but it has already become clear that genuine justifications are irrelevant to what they are doing.

Perhaps the plan is even older than that. Until January 2015, the Republicans could not have put this plan into effect because the Democrats had a majority in the Senate. Perhaps the Republicans could have filibustered a confirmation vote, but they could not have blocked the hearings.

Yet it is conceivable that the idea for this plan traces back to the very beginning of Obama’s presidency. That’s when the Republicans in Congress decided to make it their top priority to make this president fail. They might at the same time have decided: “If we ever get control of the Senate, we will just refuse to confirm anyone who would take away our control of the Court.”

Meanwhile, while the Republicans were in the minority, it was their good fortune that the two seats that Obama got to fill were to replace retiring justices – Souter and Stevens – who already were liberal votes. So those nominations sailed through to confirmation.

It was their further good fortune that it was only after the Republicans had become the Senate majority that a seat opened up that could shift control of the Court.

And at that point, the plan – however long ago it had been formulated – became operative.


The second adventure occurred among the comments my piece on DailyKos.

My piece, you may recall, makes use of an argument proposed more than a month ago in a Washington Post column by a lawyer named Diskant. He proposed that the Senate could be said to have “waived” its right to advise and consent by its having failed to act, and that this waiver arguably gives the president grounds for proceeding unilaterally to appoint Judge Garland to the Court.

One unusually cogent comment called my attention to a couple of articles (here and here), also published by the Post, which argued very forcefully – and with some display of genuine expertise on constitutional matters – that Diskant’s was a “bad argument,” that it did not hold up to constitutional scrutiny of the “Appointments Clause.” According to both of these articles, the Senate has no limits whatever on what it does or does not do regarding its role of “advise and consent.” Nothing stops the Senate from doing nothing.

I read the articles with real interest, and also with some embarrassment.

I was embarrassed that I had not done more of my homework before going public – back in April, and then again yesterday – expressing my hope that the president would follow Diskant’s advice. I hadn’t pretended to be a constitutional scholar (though I’ve been deeply interested in constitutional matters since I took a course in constitutional history with the late, great Professor Robert McClosky back in 1964). But I had publicly taking seriously an argument – that the Senate had perhaps forfeited its right to participate in the process by just stonewalling for months – that these two constitutional experts were now dismissing as obviously flawed.

So my first response to the comment was to appreciate the apparent refutation of my own argument, and to confess that I had not been aware of these forceful critiques of Diskant’s column.

But then I did a bit of additional research, and I discovered that one of the authors of these two articles in the Post had ties to the Cato Institute, while the other is a contributor to the National Review and has been honored by the Federalist Society.

The question clearly arises then: to what extent are the judgments they are expressing dictated by a disinterested and honest reading of the Constitution and its history, and to what extent by their allegiance to the political right?

And as I researched further, I found that there were arguments on both sides of the central question: Are there constitutional limits on how the Senate can deal – or refuse to deal – with the process of “advise and consent”?

Or, more to the point, I could find no one whose opinion on that question could not be predicted by whether they were on the liberal or the conservative side of our political divide.

As the blogger on the website SIMPLE JUSTICE says in an article titled, “Is ‘Ignore’ a Constitutional Option”:

That the president “shall” nominate is pretty clear. That it shall be “by and with the Advice and Consent of the Senate” is where things get cloudy. There is a dearth of law* on the issue, and general views seem to be governed more by political expediency than anything else. The arguments of the teams are entirely unprincipled and designed to screw the other team. Each team’s cheering section is trying to out-cheer the other.

Which, one might say, is reminiscent of the problems we are having in these times with the Supreme Court itself.


I don’t claim to know the history of the Appointments Clause, or how an objective constitutional expert would apply it to this case.

I do believe I know enough of the history to know that the stance that McConnell announced, and that the Republicans have persisted in – which is to stonewall not some particular nominee, but ANY nominee the president might name – is unprecedented. And because it is unprecedented, it would seem that, whatever the history of the interpretation of the Senate’s duties or lack of them, that history could not definitively determine what is constitutional in THIS case.

As the Senate’s conduct has placed us in new territory, the system should be open to breaking new ground in how the Constitution should be applied. There’s a new question that might admit of a new answer.

The best answer would be the one that will best serve the nation’s future, and in terms of the future, it is easy to foresee disturbing consequences for our politics and for the Constitution if this precedent is allowed to stand.

If the Republicans are able to get away with this strategy, is there any reason to believe that in the future any Senate majority faced with a president from the opposing party will take the same course?

That question might come up rather soon. If Trump is elected but the Democrats take control of the Senate, would you expect the Democrats in the Senate to do what the Senate has always – until now – done, or would they figure that turnabout is fair play, and block the process? I would bet on the latter. (Indeed, I would even hope for the latter—as it is damaging also for such tactics to be rewarded.)

But consider the damage to the nation if that is how we proceed from here. The Supreme Court becomes even more of a political football. Compromise becomes even more excluded from our public affairs. Politics becomes even more a form of war. And the processes laid out by the Constitution become feebler as means for us to manage our affairs – and adjudicate our differences – in good order.

For all those reasons, I continue to believe that this is a matter that really needs to be put before the Supreme Court.

It certainly seems possible that the Court would split 4-4 along partisan lines, which would compound the tragedy, and further undercut the hope that we can be governed by good constitutional principles, and not just the desire of each side to dominate.

But it is said that John Roberts truly does care about the integrity and reputation of the Court. It would be nice of that is so. If it is so, perhaps at least he (and perhaps also Anthony Kennedy) would see down the road to where this precedent could take us, and would decide to act for the integrity of our system, even against their partisan allegiance.

I would hope they would decide: The Senate has responsibilities here as well as rights. And no, the Senate does not have the right to decide that no one the president names will even be considered.