The Daily Apple: Apple #727: Supreme Court Justice Nominations

The death of Supreme Court Justice Antonin Scalia has prompted all sorts of speculating and bloviating about how the next Justice should or should not be chosen. In particular, the hot-button question is whether President Obama as an outgoing President should abstain from nominating another Justice and let the next President make the nomination, or if he should proceed with appropriate speed and put forth his nomination as soon as possible.

This is a hornet's nest of political grandstanding and finger-pointing and barbs of all persuasions. I, your intrepid Apple Lady, am going to don my helmet of information-gathering, enter the hornet's nest, and sort out the fact from the bloviating. Because this is what your Apple Lady does in the name of knowledge.

The United States Supreme Court. Of the three branches of the US government, this one is my favorite. They wear robes, and they say, Hey, I don't care what you've been doing, from now on, you have to be decent to each other. Most of the time, that's what they say.
(Photo from Wikipedia)

The most important thing to know about the rules governing the nomination of Supreme Court Justices is there aren't any.

The only official document that discusses the nomination of judges to the Supreme Court is the US Constitution, and it does so in a dependent clause within a very long sentence about all sorts of nominations the President shall make to all sorts of posts. The part pertaining to the Supreme Court is very small, so to get at it you have to elide a bunch of other stuff. And you wind up with this:

The President "shall have power, by and with the advice and consent of the Senate, to . . . nominate . . . judges of the Supreme Court. . . ."

That's it. The Senate has to advise the President on his or her choice, and the Senate has to agree to that choice. No instruction about how that advice is to be given, or how the agreement is to be made, or anything like that. So a majority of Senate votes determines confirmation.

Tradition and party politics has added complication to the process, but none of those extras is required or mandated by the Constitution or any other legal document.

Article II, not shown here in its entirety, but this is where the minimal rule appears about how Supreme Court judges are chosen.
(Image from Simplebooklet)

There is no rule that says nominations must be made within a certain amount of time after a vacancy on the Court opens.

One thing that I thought would be a consideration is that you might not want to have a seat on the Court to be vacant for very long. But there is no rule that says the vacancy can't last for a certain amount of time. The vacancy could theoretically be indefinite.

In case you're interested, statute dictates that the Supreme Court convenes the first Monday in October and continues sessions until late June or early July (the term is actually supposed to continue until the day before the first Monday in October, but the judges typically get through their caseload by July). So this opening has occurred in mid-session.

There is no rule that says the Court cannot convene with an empty seat.

If a seat is not filled, does that put the Supreme Court on hold? Can they hear cases and make decisions with less than their usual 9 judges?

The short answer: yup.

Rules established by the US Code say there must be a quorum, which is 2/3 of the total participants, which is therefore 6. So they could still decide cases with 1 seat empty.

In 1971, there were 2 seats empty after John Marshall Harlan resigned and Hugo L. Black died. Before that, there were 2 vacancies in 1957. One of those 2 seats was vacant for several months, after the resignation of Justice Sherman Minton.

Inside the US Supreme Court. Imposing, isn't it?
(Photo from the Library of Congress. I'd just like to point out that Getty is selling this exact same photo with their name on it and charging people to use it.)

In fact, the number of judges seated on the Supreme Court has fluctuated over the years.

The Judiciary Act of 1789 established that there would be 6 judges (5 associates and 1 chief). Subsequent acts of Congress that changed the total number of judges are as follows:
1807: 7
1837: 9
1863: 10
1866: 7 (and prevented then-President Andrew Johnson from making any appointments)
1869: 9

If Congress decided on a number other than 9, quorum would therefore also be a different number.

So there's nothing that says President Obama (or any President) must nominate a new Justice within a certain time-frame.

There is no rule that says an outgoing President cannot nominate a Justice in the last months of his or her term, but must leave that privilege to his or her successor.

This is the hot-button issue at the moment. A lot of politicians who are not fans of President Obama and who think his nominee would be someone whose political positions they also dislike have been maintaining that, because our current President is in the waning months of his 8-year-elected term, he should not be allowed to nominate someone. Or should be discouraged from doing so. Or should not have his nominee considered. Etc.

I haven't read all the articles that take this position, but I suspect they are doing so on the basis of what is known as the "Thurmond Rule."

In 1968, Strom Thurmond (R-S.C.) made the statement that a judicial nominee should not be confirmed in the months prior to an election. He said this in the context of, and as one rationale for, blocking the confirmation of LBJ's nominee Abe Fortas to be promoted from an associate Justice to Chief Justice.

In fact, the majority of the arguments made against the confirmation of Fortas had to do with objections on the basis of his religion/ethnicity (he was Jewish), concerns about his ethical position, and concerns that he made decisions that were too consistently liberal, and that he was politicizing the Court.

Strom Thurmond (R-S.C.). A guy who said some stuff. Including the longest filibuster on record, against the passage of the Civil Rights Act of 1957.
(Photo sourced from Real Clear Politics)

Regardless of the primacy(or lack thereof) of the Thurmond Rule at the time, it has been invoked since then as though it were some regulation that must be adhered to. But it isn't actually a rule, nothing has ever been codified or signed into law. It's just something that one Senator said should be a practice.

Since this statement has never been codified or signed into law, no particulars have been set as guidelines. Within how many months before the end of the sitting President's term does this "rule" come into play? Is it only when the President becomes a lame-duck? If so, that does not apply here, since an office-holder only becomes a lame duck when his or her replacement has been elected.

Furthermore, politicians invoke the "rule" when it benefits them and they argue against it when it doesn't.

Patrick Leahy (D-Vt): In July 2008, the Senate Republican caucus held a hearing solely dedicated to arguing that the Thurmond Rule does not exist. At that hearing, the senior Senator from Kentucky stated: “I think it’s clear that there is no Thurmond Rule. And I think the facts demonstrate that.” Similarly, the Senator from Iowa, my friend who is now serving as Chairman of the Judiciary Committee, stated at that hearing that the Thurmond Rule was in his view “plain bunk.” He said: “The reality is that the Senate has never stopped confirming judicial nominees during the last few months of a president’s term.” That was certainly the case when Democrats were in the majority in the last two years of the George W. Bush administration. I served as Chairman of the Judiciary Committee then, and I can tell you that Senate Democrats confirmed 22 of President Bush’s judicial nominees in the second half of 2008.

Interestingly, on another occasion, Leahy himself apparently argued exactly the opposite, that there is a Thurmond Rule, and it should be upheld. Because in 2004 Orrin Hatch (R-Utah) responded: "There is no 'Thurmond Rule,' " Hatch said about Leahy's contention that the committee since Thurmond led it has shut down confirmations after the first party convention in an election year. "Strom Thurmond unilaterally on his own . . . when he was chairman could say whatever he wanted to, but that didn't bind the whole committee, and it doesn't bind me," Hatch said. "He (Leahy) raises the 'Thurmond rule' to remind us that Sen. Thurmond, who was inconsistent in applying his own ideas, should bind the whole committee, but it doesn't," he said. "To make a long story short, we're going to keep on pushing ahead on judges and hopefully get a number of them through before the end of the year," Hatch said.

I have every confidence that a scrutiny of the remarks made by several Senators from either party will reveal arguments in favor of or against the Thurmond Rule, depending on whether that position happens to benefit that Senator's party at the time.

In other words, politicians use it as an excuse, or an expedient. It is not a law or even a rule that must be followed.

Anyone who argues that the Thurmond Rule has been followed in the past, and therefore should be followed now, is ignoring history. Election-year nominations in the 20th century are as follows:

Mahlon Pitney, nominated by William Taft on March 13, 1912, and confirmed March 18, 1912

Louis Brandeis, nominated by Woodrow Wilson on January 28, 1916, and confirmed June 1, 1916

John Clarke, nominated by Woodrow Wilson on July 14, 1916, and confirmed July 24, 1916

Benajmin Cardozo, nominated by Herbert Hoover on February 15, 1932, and confirmed February 24, 1932

Frank Murphy, nominated by FDR on January 4, 1940, and confirmed January 16, 1940

Anthony Kennedy, nominated by Ronald Reagan on November 30, 1987, confirmed February 3, 1988

There is no rule that says the nomination cannot be made while the Senate is in recess.

In fact, if the President wanted to, he could wait until the Senate is not in session and nominate whoever he wants.

In fact, the only other rule about the Supreme Court nomination process that the Constitution does state is that a nomination CAN be made while the Senate is in recess. Also from Article II:

"The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session."

Recesses used to last a lot longer, in the 1700s and 1800s, when it took Senators much longer to get to D.C., and then they'd want to go home to be with their families. So it was a bigger deal if a vacancy opened up in a key post while they were home plowing their fields or writing their memoirs or whatever they were doing. So the Constitution allowed for the President at least to get someone in position while the Senate was away. Then when the Senate came back in session, that temporary appointment would expire.

Usually the President would ask, once the Senate was back in session, if they'd approve the nomination of that temporary appointee to a full term for real. When this happened in the Supreme Court, in every case but 1, the Senate agreed to the lifetime appointment.

Recesses are now much shorter. The Senate gets weekends off, and they get a week or two off here & there. They have this week off, actually, and they get a couple weeks off at the end of March, and another week off at the beginning of May. You know, around the major holidays.

It would be legally allowed for President Obama to appoint a a new Justice while the Senate is having a recess. But the appointment would only last for the week or two of the Senate's absence. Historically, that appointment would probably have been confirmed. But given today's political climate, the Senate would probably be so mad he did that, they'd reject the nominee even if it was Oliver Wendell Holmes himself--and with vitriol.

There is no rule that says the Justice has to have been born in the United States.

There can be no "birther" objections here.

Austrian-born Justice Felix Frankfurter told the Senators on his nomination committee that “a nominee’s record should be thoroughly scrutinized by the committee,” but the nominee should take no part in that scrutiny.
(Photo via Separate Is Not Equal)

There is no rule that says the Justice has to have a certain level of qualification or education.

A Supreme Court Justice doesn't even have to have a law degree. But every judge who has sat on the Court has had a law degree. That is the only thing all the Supreme Court Justices have in common.

There is no rule that says the Justice must be a particular age.

The youngest Justice was Joseph Story who was 32 when he was appointed. The oldest Justice was Oliver Wendell Holmes, Jr., who was 90 when he retired.

I think you get the point, how few rules govern the nomination of Supreme Court Justices. But one other point caught my eye: There is no rule that says a nominee must answer a Senate committee's questions.

Justices are not supposed to be politicians. They are supposed to make decisions based on the rule of law, not based on anything to do with party platforms or vote-garnering or anything like that. In fact, the American Bar Association's Code of Conduct stipulates that they're not supposed to make political statements: judges“shall not make . . . statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court.”

This applies to any judge being considered for any office. Many state codes of conduct have adopted this same language.

Because judges are allowed and even encouraged to avoid making political statements, Supreme Court nominees are not even required to appear at the Senate Judiciary committee hearings to determine their confirmation. They could skip the whole clown show if they wanted to.

The upshot: President Obama can nominate whoever he chooses, if he wants to. But he doesn't have to nominate anybody if he doesn't want to. It's up to him, as the elected President of the United States to decide whether or not to nominate someone. And if people don't like that decision, well, I guess they'll have to reject his nominee, or re-write the Constitution.