15 Februar 2016

Filling the Vacancy left by Scalia: The Democratic Virtues of Delay

With the death of Antonin Scalia, a vacancy of considerable political import for the future direction of the court has opened up. The quick-minded and rhetorically gifted conservative judge not only often provided a critical 5:4 conservative majority on the Supreme Court, he is also widely regarded as the intellectual leader of the conservative side of the legal establishment. With Presidential elections coming up later this year and the primaries in full swing, it has already become obvious, that appointing Scalia’s successor will not be an ordinary appointment process.

Under Art. 2 USC it is the constitutional responsibility of the President to nominate a replacement candidate, putting President Obama in a legal position to ensure that the balance of power on the Supreme Court shifts in favor of Democrats. The problem for Obama is that it is the constitutional responsibility of the Senate to confirm any nominee the President puts forward. Republicans currently hold a 54/46 majority in the Senate. Historically the Senate has been deferential to the President’s choice, but in recent decades that deference has arguably shrunk as a matter of political practice, as Supreme Court appointments have become ever more politicized.

With the Presidential elections scheduled for Nov. 2016 and the new President to be sworn into office in January 2017, Republican Presidential candidates as well as leading Senate Republicans have indicated that they would seek to delay the appointment of a new Justice until after the elections. The Senate Judicial Appointments Committee operates under a filibuster rule, according to which a 60 votes are necessary to bring a nominee to a vote. Even if all Democrats supported a candidate, they would need 16 Republicans to go along with them. To justify their delaying tactics Republicans have already brought the “Thurmond rule” in play: an informal rule proposed by Senator Strom Thurmond on occasion of refusing to vote for President Lyndon Johnson nominee Abe Fortas in the last six months of his presidency in 1968. Even though there is no canonical formulation of the rule and it is not legally binding, the rule is understood as requiring that the Judicial Committee not vote on a Supreme Court candidate within the last six months of a lame duck President´s term. The rule has been cited opportunistically on occasion by both sides, but there appear to be no further instances in which it played a central role. If President Obama moved forward quickly with a nomination in late February or early March, and the Senate´s scrutiny would take no longer than the usual range of 75-90 days, the situation would not quite fall under the literal scope of the rule, but nobody appears to believe that this is how things are likely to go. The question I want to pursue is the following: If Republicans delayed the procedure or refused to vote on any nominee Obama puts forward, would they violate their constitutional responsibilities, as Democrats insist?

In the end I don´t think so. On the contrary: I will argue that there are good grounds of constitutional principle that make delaying the appointment an attractive proposition.

To begin with, this is an issue that also turns on constitutional arguments, even if it is not an issue that will be decided by judges. It will not be resolved by judges, because under the “political question doctrine” the procedural practice governing the internal workings of Congress are not generally subjected to constitutional scrutiny by Federal Courts. It is nonetheless an issue of principle, because what is at issue is a constitutionally appropriate understanding of the duties of constitutional actors. Furthermore neither constitutional text, nor, I will assume, modern precedent or established conventions provide determinative guidance on how the Senate should proceed here. But that does not mean that there are no constitutional principles at stake and that the tactical and strategic jockeying for political advantage by the parties is the only game in town.

Constitutional actors are under an obligation to ensure that they exercise their constitutional functions in a way that does not undermine the point and purpose for which they have been established. If, for example, the vacancy on the Supreme Court were to seriously undermine its constitutional functioning, then the President and the Senate would be under a duty to exercise their powers in a way that would restore the effective functioning of the Supreme Court as soon as is compatible with the rigors of a carefully conducted appointments process. But of course the Supreme Court can function perfectly well with eight judges for a year. Only six judges are needed in order for the court to decide cases (28 U.S. Code § 1). Nor is it a problem that in some cases the court may divide evenly on a case, when there are only eight judges. The US S. Ct. would function like the German Federal Constitutional Court, where there are eight judges in each Senate as a matter of design: Absent a majority to overturn a decision, the decision of the previous decision-maker would be confirmed. A 5:3 decision would be needed to overturn the decision of lower courts. So concerns relating to ensuring the proper constitutional functioning of the Supreme Court are not a serious issue.

The core case in favor of connecting the appointment of a new Supreme Court Judge to the outcome of the Presidential election process is related to the problem of democratic legitimacy. All other things being equal, a judge appointed by a President who has just been elected and who has had the opportunity to make his appointment policies a subject of the campaign enjoys greater democratic legitimacy than an appointment made by a lame duck President towards the end of his term. Such a President, prevented from seeking a third term by constitutional term limits, has no incentive to ensure that his nominee reflects widespread representative sensibilities and outlooks, and is subject only to whatever constraints the Senatorial confirmation process may provide.

To see the issue in the wider context of the legitimacy of constitutional adjudication, note how the democratic legitimacy of judges is rightly an issue that is of greater concern in the US than in just about any other constitutional democracy. This is because of the specific content of the rules governing the interaction between democratic politics and adjudication. First, there is the problem of judge’s tenure: In most jurisdictions the tenure of constitutional court judges is limited, generally not more than 12 years and occasionally less. In the US judges have life tenure. Often – like Justice Scalia and all Popes except Benedict XVI – judges hold office until they die. Justice Scalia sat on the Supreme Court for nearly 30 years. The average term length for the judges that the currently sitting crop of Supreme Court judges have replaced is slightly more than 26 years. There are good reasons why judges are not elected in the same rhythm and with the same frequency as legislators. But even if Jefferson’s claim that constitutions should be replaced every 20 years by a revolution may have been over the top, surely the proposition that those who claim to be final interpreters of the constitution should be replaced within that time frame makes good democratic sense.

Second, the perverse effects of the life tenure rule are amplified by the rule on constitutional amendments, which make it a rare historical event for the political branches to come back and challenge the Supreme Court. Art. V USC famously requires not only 2/3 majorities in both houses of Congress, but also the ratification by a qualified majority of states. Compare this not only with rules such as those in Canada or New Zealand, where the legislature has the authority to effectively maintain the legal validity of a statute with simple majorities, but also other constitutional systems where often a qualified majority in the main central legislative bodies suffice to amend the constitution. In some of those jurisdictions amendments to the constitution are not rare events, but routine legislative operations. Taken together these rules provide a structure which places a considerable burden on the plausibility of the constitutionally attractive metaphor of a “dialogue” between judges and the political branches.

I’m not suggesting that connecting the appointment of Supreme Court Justices more closely to Presidential elections is a silver bullet or even a major step in addressing judicial legitimacy issues in the US. For those to be addressed some mix of other reforms would be more effective: life tenure should be abolished, constitutional amendments facilitated, and perhaps even voting majorities changed (why not require that federal courts can strike down state legislation only by a qualified, say 6:3, as is the rule in South Korea?). But applying something like the “Thurmond rule” would appear to be a step in the right direction.

That assessment does not change merely because we might have reasonable grounds to believe that Republicans use that argument only because they believe it suits their policy agenda. (More accurately, when, say, Senator Cruz or Senator Rubio insist that we should wait for the outcome of the election it is not implausible to believe that they say this because they believe saying this will increase their chances of winning the Republican primary). To begin with, whether an obstructionist policy of delay actually does further Republican policy outcomes is, I think, a complex issue and not at all obvious. If you are a Republican and you are certain that you will win the next elections, then of course you’ll want to wait until a new Republican President can appoint a judge more in tune with your sensibilities and outlook. But what if you won’t win the elections? Might you not get a better compromise nominee from a sitting duck President operating in a difficult political environment seeking to build a legacy of accomplishment and of overcoming partisanship than a nominee put forward by a newly elected Democratic President in the flush of victory? And might an obstructionist delay policy by Republicans not invigorate a part of the Democratic electorate, that might otherwise not have bothered to show up to vote for a candidate it might find non-inspiring, thereby undermining the chances of electoral victory? These issues are not simple. But whatever the case might be and more importantly: the strategic use and abuse of a good argument by a political adversary should not blind us to the substantive merits of that argument. If Republicans will obstruct an Obama nominee on the grounds that the appointment should be made after the Presidential elections, they may have a fair point.


SUGGESTED CITATION  Kumm, Mattias: Filling the Vacancy left by Scalia: The Democratic Virtues of Delay, VerfBlog, 2016/2/15, https://verfassungsblog.de/filling-the-vacancy-left-by-scalia-the-democratic-virtues-of-delay/, DOI: 10.17176/20160215-103832.

8 Comments

  1. filtor Mo 15 Feb 2016 at 12:40 - Reply

    „Presidential elections scheduled for Dec. 2016“: Die Wahl ist bekanntlich immer am Dienstag nach dem ersten Montag im November, also nie im Dezember.

  2. Maximilian Steinbeis Mo 15 Feb 2016 at 13:22 - Reply

    @Filtor: ist korrigiert, danke

  3. Helen Hartnell Mi 17 Feb 2016 at 11:22 - Reply

    Sauce for the goose is sauce for the gander. (Observe Ronald Reagan pleading, in 1987 towards the end of his second term in office, for a bipartisan effort to fulfill the „constitutional obligation“ to fill the vacancy on the Supreme Court, and restore the Court to „full strength“ by confirming his nominee, Anthony Kennedy, who – in fact – was subsequently confirmed, I believe by unanimous vote.)

    https://youtu.be/Y_3PEIUEGto

    While I take your point that legitimacy of the U.S. Supreme Court may be particularly important, l am not persuaded that Justice Kennedy’s appointment in 1988 has made the Court appear to be any less legitimate. If anything, the fact that he has turned out to be an important swing vote might suggest that his presence makes the Court appear to be less partisan, and hence more legitimate. How one comes down on this issue depends, of course, on whose sense of legitimacy one thinks matters, and how one defines legitimacy.

    I would love to see the U.S. follow a saner approach to achieving political balance on the highest court, as on the BVerfG, but it seems unlikely that this will ever happen. (For that matter, I would prefer to be a citizen of a parliamentary democracy with a 5% threshold, but this won’t happen in my lifetime either.) Our practice of democracy in the U.S. is flawed in many respects, but it would be politically naive for President Obama, or anyone else who votes there, to behave as if this were not so, when it comes to naming Justice Scalia’s successor.

  4. Onawa L. Mi 17 Feb 2016 at 14:15 - Reply

    You write:
    “All other things being equal, a judge appointed by a President who has just been elected and who has had the opportunity to make his appointment policies a subject of the campaign enjoys greater democratic legitimacy than an appointment made by a lame duck President towards the end of his term. Such a President, prevented from seeking a third term by constitutional term limits, has no incentive to ensure that his nominee reflects widespread representative sensibilities and outlooks, and is subject only to whatever constraints the Senatorial confirmation process may provide.”

    I question the logic of such a statement. What constitutes having “just been elected” and what constitutes “lame duck president”? Why is Obama, who is only just over three quarters of the way through his second term suddenly at the “end of his term”? As I understand it, lame duck is/was normally applied to legislators and presidents who remained in office *after* new elections had been held and their successors clear (i.e., the time between the end of November/ish and the inauguration of the next president in January). Now “lame duck” refers to a sitting president who still has nearly a quarter of his term left to serve? Where is the threshold here? Pushing this logic a bit further, if I understand correctly, the two-term limit on US presidents means that any appointment to the Court *after* the beginning of the 2nd term would be less legitimate than an appointment that took place during the 1st term simply because the president wouldn’t again face reelection thus assuring that his choice of appointee would not be subject to a vote of approval by the general public. Really? I question why it is any more legitimate to wait for a new presidential election before appointing a successor to the seat than it is to allow the sitting president who won legitimate reelection to carry out his constitutionally (and publicly!) mandated duties.

  5. Wondering why Mi 17 Feb 2016 at 15:19 - Reply

    There is no expiration-date on democratic legitimacy other than the actual end of the term. Suggesting otherwhise overplays the concept of legitimacy under the conditions of a representative democracy that needs working democratic institutions. Legitimacy of an institutional body or a person is an absolute, not a relative category. It is particularly absurd to suggest decreasing legitimacy of a sitting president when it comes to SC-nominees. As the author rightly emphasizes, life tenure in itself is a rather foolish concept: But what difference does the length of the remainder of a president´s term make, if a SC Justice sits on the bench for 26 years on average, or in case Scalia for 30 years?

  6. Virginia Simson Mo 7 Mrz 2016 at 08:46 - Reply

    You might find this interesting.

    It’s defeating the Roberts court that is the main thing. Better to get it right, than rush to judgment.

    http://www.counterpunch.org/2016/02/19/in-the-middle-of-an-electoral-revolution-scalia-leaves-the-plutocracy-one-seat-short-and-its-a-radical-seat/

  7. LK Mo 7 Mrz 2016 at 13:38 - Reply

    Sehr gut. It is appropriate that a German scholar would make better sense than most US writers on this subject concerning the judicial supremacist US Supreme Court’s lack of political legitimacy.

    Other than the side comment about „constitutional amendments facilitated“ being a useful strategy this article clearly points a far better way forward than the political energy currently being wasted on promoting Obama’s abstract „right“ to get a hearing on his pig in the poke nominee.
    Here is more detailed support for the author’s position
    http://egbertowillies.com/2016/02/20/scalia-leaves-the-plutocracy-one-vote-short/#like-36006

  8. Noah Sa 23 Apr 2016 at 15:43 - Reply

    „The US S. Ct. would function like the German Federal Constitutional Court, where there are eight judges in each Senate as a matter of design: Absent a majority to overturn a decision, the decision of the previous decision-maker would be confirmed. A 5:3 decision would be needed to overturn the decision of lower courts. So concerns relating to ensuring the proper constitutional functioning of the Supreme Court are not a serious issue.“

    Except the US system is not like the German court system. „The previous decision maker“ in Germany cannot decline to apply a law passed by parliament or strike it down on his own accord (except in cases of national law contradicting EU law), he has to go through Art. 100 GG. Also the previous decision maker in Germany is (nearly always) one of the five high federal courts, each solely responsible for one area of law. In the US it’s regularly one of the Circuit Courts, meaning federal law is applied differently in different circuits (each circuit having jurisdiction over a number of states). That’s obviously a problem. An even number of justices increases the likelihood of an uneven application of the law throughout the country. Not sure if anyone here would be cool with Bavarian courts applying the BGB differently than Berlin courts.

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