“Why President Obama Has the Constitutional Power to Appoint—and Not Just Nominate—a Replacement for Justice Scalia”

Rob Kar and Jason Mazzone have posted this draft on SSRN.  Here is the abstract:

After Justice Antonin Scalia’s recent death, politicians wasted no time before teeing up a political battle over his replacement. Republican Senators—led by Senate Majority Leader Mitch McConnell—immediately announced that they will not consider or vote on any replacement nominees from the current President. In doing so, they have taken a position that may be constitutionally problematic in ways that have not yet been fully appreciated. Now that President Obama has nominated Judge Merrick Garland to the Supreme Court, this problem requires greater attention.

The crux of the problem is that an outright refusal on the part of the Senate to consider any nominee from President Obama arguably works a delegation of an elected President’s Supreme Court appointment power to an unknown successor. While the Appointments Clause of the Constitution allows Congress to delegate a President’s appointment power in certain instances, it does not permit delegation with respect to Supreme Court appointments. Hence this delegation raises a potential problem of separation of powers. Historical practice also cautions against any effort to delegate to a future President the authority to nominate and appointment a member of the Supreme Court. We show that there are 104 cases in which an elected President has faced a vacancy on the Supreme Court and began the appointment process prior to the election of a successor. In all 104 cases, the sitting President was able to both nominate and, with the advice and consent of the Senate, appoint a replacement Justice. We explain why this is a better reading of historical precedent than any limited to consideration of the last 80 years. Hence, constitutional text, structure and history suggest that the Senate Republicans’ current plan not to act at all on any Obama nominee may violate the Constitution. Given this possible constitutional problem, there are also heightened prudential risks to the position Senate Republicans have taken.

None of this means that the Senate cannot vote against President Obama’s nominees on a wide range of grounds. The Senate also has broad discretion to determine its procedures for vetting a nominee. But the delegation problem identified in this Article provides a significant reason for Republican Senators, sworn to uphold the Constitution, to rethink their current position. They should instead consider and vote upon Garland or any other timely submitted nominee.

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