Scalia's seat should be kept open

John Yoo

is a law professor at the University of California at Berkeley, a former general counsel for the Senate Judiciary Committee, and a former Justice Department official. He is coeditor of "Liberty's Nemesis: The Unchecked Expansion of the State"

Last week's nomination of Merrick Garland to the Supreme Court signals President Obama's willingness to compromise, but it comes far too late to induce a sudden state of happy cooperation. It should not change the political calculus of the Republican majority to keep Justice Antonin Scalia's seat open until the November elections.

Garland serves as the chief judge of the U.S. Court of Appeals for Washington, commonly described as the second-highest court in the land because of its jurisdiction over the headquarters of the federal government. It has long served as the prep school for Supreme Court justices - it is the bench on which Scalia first served, as well as Chief Justice John G. Roberts Jr. and Justices Ruth Bader Ginsburg and Clarence Thomas.

Garland also seems eminently qualified. He went to Harvard for his undergraduate and law degrees, and served as a law clerk for Judge Henry Friendly and Justice William J. Brennan of the Supreme Court. He worked as a partner for a powerhouse D.C. law firm and served as a top Justice Department official during the Clinton administration before his appointment to the D.C. Circuit in 1997.

Garland enjoys a reputation as a relatively moderate judge, someone who seeks consensus and writes careful, technical legal decisions. He is probably the most moderate Supreme Court candidate nominated by a Democratic president since John F. Kennedy tapped Byron White in 1962. Have no illusions, though. As a Democratic appointment, Garland would no doubt join a liberal majority to uphold Roe v. Wade (recognizing a constitutional right to abortion) or Obergefell v. Hodges (the same as to gay marriage). But if his track record on the D.C. Circuit gives any indication, he would also side more often with the police and prosecutors over criminal defendants and with regulators over industry. He also voted against his court's holding that the Second Amendment protects an individual right to own firearms.

Obama still hopes to get a justice through the Senate. He put aside the opportunity to nominate a candidate who had little chance but could have served as a convenient point of attack in the presidential campaign because of his or her race or gender.

In any normal year, Senate Republicans would welcome such a nomination from a Democratic president with open arms. But as the rise of Donald Trump and Bernie Sanders shows, this is no normal year. Scalia's vacancy comes in the last year of a lame-duck president, with a Senate controlled by the opposition, and national elections closing fast. The Senate has rarely confirmed a Supreme Court justice in such circumstances. Of the 160 nominations to the court in any year, the Senate did not confirm 36 and did not even vote on 25 of them.

Nevertheless, Senate Republicans should keep Scalia's seat open at least until the November elections. The president believes the Constitution requires otherwise. "I plan to fulfill my constitutional responsibilities to nominate a successor in due time," he said after Scalia's death, and demanded that the Senate must "fulfill its responsibility to give that person a fair hearing and a timely vote."

Contrary to this claim, however, the Constitution does not require the Senate to give Garland a hearing or a vote. The Appointments Clause set out in Article II, Section 2, of the Constitution declares that the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other officers of the United States . . ."

The Appointments Clause undeniably sets out a power-sharing procedure. The president nominates, the Senate gives its advice and consent, and only then can the president complete the nomination. But the constitutional text does not impose any duties. It does not require the president to nominate candidates for vacancies; it does not require the Senate to take a vote; it does not even require the president to complete the appointment after the Senate consents (as the Supreme Court made clear in the foundational case establishing judicial review, Marbury v. Madison, in 1803).

Notice that the Appointments Clause also sets out the process for appointments to the cabinet and other important federal officers. No one has ever seriously read this language to require the Senate to give an up-or-down vote for every presidential nominee to an important executive-branch job; probably thousands have sat idly by waiting for a vote that never came. Article II, Section 2, also uses the same procedure for treaties - the president submits a treaty, two-thirds of the Senate gives its advice and consent, and then the president can make the treaty. By tradition and history, the Senate has never had an obligation to vote up or down on a treaty - there are several that have waited decades for approval.

Critics might accuse Republicans of politicizing judicial appointments. This is true, but refusing to vote on Garland is sadly the only rational response to a downward spiral started by Senate Democrats. In 1987, they unjustly blocked Judge Robert Bork from the high court for believing in the original understanding of the Constitution and tried to prevent Clarence Thomas from appointment for being a black conservative. Democrats filibustered dozens of President George W. Bush's lower-court nominees on the exact same grounds as Senate Republicans today: that the Constitution does not require a Senate vote. Judicial nominations will never leave the political swamps until Republicans respond tit-for-tat.

The Republicans also have reason beyond tactics to await the outcome of the November elections before deciding on the Scalia seat. In the years since the Warren Court, the Supreme Court has expanded its powers and taken more and more issues away from the democratic process. These involve policies dear to both liberals and conservatives: affirmative action, gun rights, abortion, gay marriage, religion, immigration, and health care. If we are to restore control over society's deepest social questions to our constitutional democracy, the people should at least have a say over the appointment of justices to the court that has seized them.

If a Republican wins the presidency, then the people will have spoken in favor of replacing Scalia with another conservative. If a Democrat wins, the Senate could confirm Garland or await a pick from Hillary Clinton or Sanders. But in either case, the American people will have had a say in filling a seat on a court that has seized more and more issues from the political process. It is the least that democracy requires.

jyoo@law.berkeley.edu