WASHINGTON — How unusual is the Republican blockade of the nomination of Judge Merrick B. Garland, President Obama’s pick for the Supreme Court? After a comprehensive look at every past Supreme Court vacancy, two law professors have concluded that it is an unprecedented development.
Senate Republicans say they will not consider any nominee offered by Mr. Obama to replace Justice Antonin Scalia, who died in February. The power to appoint Justice Scalia’s successor, they say, should belong to the next president.
That categorical stance is new in the nation’s history, the professors, Robin Bradley Kar and Jason Mazzone, wrote in a study published online by The New York University Law Review. The Senate has never before transferred a president’s appointment power in comparable circumstances to an unknown successor, they said — an argument that many Democratic lawmakers have also made.
In every one of the 103 earlier Supreme Court vacancies, the professors wrote, the president was able to both nominate and appoint a replacement with the Senate’s advice and consent. This did not always happen on the first try, they wrote, but it always happened.
“There really is something unique about the position Republican senators are taking with respect to the Scalia vacancy,” said Professor Mazzone, who teaches at the University of Illinois.
“You really cannot find any single comparable case,” he said. “We really did not find any precedent for the idea, notwithstanding the Senate’s very broad powers in this area, that a sitting president could be denied outright the authority to offer up a nominee who would receive evaluation through normal Senate processes.”
The study was the subject of a thorough critique by Edward Whelan, a prominent conservative legal blogger, who said Professors Kar and Mazzone had to perform semantic gymnastics to discern a consistent historical practice.
The study considered only nominations to the Supreme Court, though the Senate must also confirm other federal judges and senior executive branch officials.
“It is nonsensical to read into the Constitution one rule governing Supreme Court justices and another rule for everyone else,” Mr. Whelan wrote in a series of posts on National Review’s Bench Memos blog.
The professors also excluded nominations from three presidents who gained office by succession rather than election, saying that the constitutional status of unelected presidents was contested until the adoption of the 25th Amendment in 1967. In addition, they excluded three presidents who started the nomination process after their successors had already been elected.
Merrick B. Garland is a candidate who had support from Republicans in the past but would still move the court in a progressive direction.
You can make a decent case for both exceptions. It is harder to ignore President Lyndon B. Johnson’s failure in 1968, an election year, to fill Chief Justice Earl Warren’s seat. Johnson ultimately withdrew his nomination of Justice Abe Fortas.
The study’s authors “gerrymander their way around this inconvenience,” Mr. Whelan wrote, by saying that there was no actual vacancy to fill because Warren had merely declared in a letter to Johnson that he was prepared to step down “effective at your pleasure.”
The Fortas affair helps both sides in the debate. Some senators opposed his nomination on the grounds that the next president should make the appointment. But the Senate Judiciary Committee held confirmation hearings and sent the nomination to the Senate floor. The nomination failed, but mostly on the basis of an individualized assessment of Fortas’s qualifications to be chief justice.
“There is a difference,” Professor Mazzone said, “between the Senate rejecting, as it’s quite entitled to do, a particular nominee on the merits, and the Senate taking the position that a president cannot exercise a constitutionally delegated power.”
Should it matter if the Senate has always given presidents a real shot at appointing a Supreme Court justice? At a minimum, the authors say, the historical precedents establish “a benchmark of fair dealing.” More controversially, they say that historical practices “can ripen into constitutional rules.”
That is not obviously true, but the Supreme Court seemed to say something similar in 2014, in a case on recess appointments. But even if the constitutional argument is a stretch, tradition counts for something.
“History draws a distinction between rejecting a candidate and rejecting a presidential power,” said Professor Kar, who also teaches at the University of Illinois. “It’s a norm of fair dealing in the Senate. Procedure matters, and this breach is a dangerous one.”
Mr. Whelan wrote that the study supplied an answer to the wrong question. The right one, he said, is “how to deal with (a) a nomination by an opposite-party president, (b) in an election year, (c) that threatens to dramatically alter the ideological composition of the court.”
That is a good description of current political realities. Professors Kar and Mazzone say they instead tried to discern a neutral principle from centuries of unbroken practice.
I asked Professor Mazzone what he would tell a Republican senator to do in considering Judge Garland’s nomination.
“You do what the Senate has always done in comparable circumstances,” he said, “which is you proceed with a good-faith evaluation of the candidate on the merits.”
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