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Moratoriums on Supreme Court Nominations and the Separation of Powers

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Moratoriums on Supreme Court Nominations and the Separation of Powers Kentucky Law Journal Volume 106 Issue 3 Article 2 2018 Senators Can't Be Choosers: Moratoriums on Supreme Court Nominations and the Separation of Powers J. Stephen Clark Albany Law School Follow this and additional works at: https://uknowledge.uky.edu/klj Part of the Supreme Court of the United States Commons Right click to open a feedback form in a new tab to let us know how this document benefits ou.y Recommended Citation Clark, J. Stephen (2018) "Senators Can't Be Choosers: Moratoriums on Supreme Court Nominations and the Separation of Powers," Kentucky Law Journal: Vol. 106 : Iss. 3 , Article 2. Available at: https://uknowledge.uky.edu/klj/vol106/iss3/2 This Article is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal by an authorized editor of UKnowledge. For more information, please contact [email protected]. Kentucky Law Journal VOLUME lo6 =o7-2o18 NUMBER3 ARTICLES SENATORS CAN'T BE CHOOSERS: MORATORIUMS ON SUPREME COURT NOMINATIONS AND THE SEPARATION OF POWERS J Stephen Clark' TABLE OF CONTENTS TABLE OF CONTENTS ....................................... ...... 337 INTRODUCTION.................................................. 339 I. SEPARATION OF POWERS .................................. ..... 343 A. The Appointment of/ustices........................... 343 B. Availabil ................................. ........... 349 i. The Senate's Confirmation Discretion is Absolute ........ ..... 349 ii. The Power to Reduce the Size of the Court....... ............ 352 II. ENCROACHMENT ........................................ ...... 357 A. Repudiation ........................................ ...... 357 B. Usurpation ......................................... ...... 366 i. Superintending ......................................... 367 ii. Conveyancing ................................... ....... 370 III. IMPAIRMENT ................................................. 373 A. Executive Impairment............................... 374 B. JudicialImpainnent. ................................. ....... 380 i. Tangible Effects ....................................... 380 1. Denial of a Quorum ..................................... 380 2. Risk of Deadlock. .............................. ...... 382 3. Other Tangible Impairments............... ........... 383 ii. Intangible Effects ..................................... 384 Professor of Law, Albany Law School. J.D., Yale (1995); B.A., Univ. of Tenn. (1991). The author thanks Dean Alicia Ouellette of Albany Law School and the Board of Trustees for the generous financial support of this project. 337 338 KENTUCKY LAWJOURNAL Vol. 1o6 C Sen ateJus tiicatdons ........................................................ 387 IV. TRADITON ...................................................................... 391 A. IrrelevantIn stances ......................................................... 394 B. Rejection Res Judicata ...................................................... 394 C Substantive Withdrawals................................................... 395 D. ProceduralRejections....................................................... 396 E. Committee Action.......................................................... 397 i. Matthews ............................................................... 397 ii. Read..................................................................... 398 iii. Butler ................................................................... 399 iv. Hornblower............................................................. 400 F No Action ................................................................... 401 i. Micou................................................................... 401 ii. Stanberry................................................................ 402 iii. Harlan................................................................... 403 G. Garland...................................................................... 406 CONCLUSION......................................................................... 407 zor7-2018 Senators Can't Be Choosers 339 INTRODUCTION By the time Republican Richard M. Nixon took office as the 37th President of the United States on January 20, 1969, Chief Justice Earl Warren had already publicly committed to retiring at the end of the court's term in June. 2 Engulfed in scandal, Justice Abe Fortas then announced his resignation on May 15, 1969.3 Facing the prospect of two Republican appointments to the liberal Warren Court,' Senator Mike Mansfield, the Democratic Majority Leader of the Democratic-controlled Senate, did not commit the Senate to a moratorium on even entertaining nominations to the Supreme Court until a new President, perhaps a Democrat, was elected.5 But what if Mansfield had? If Mansfield had imposed a moratorium on Supreme Court nominations until a Democratic President took office-eight years later, it would turn out6-the membership of the Court would have withered. The nine-member Court of May 1969' would have dropped to seven members after Warren and Fortas departed. Had the moratorium continued, the membership of the Court would have declined to five Justices by September 1971, when declining health forced Justices Hugo L. Black and, a week later, John M. Harlan9 to retire. At that point, the rump Court of Five would have been forced to cease operations because a quorum of six is required by law to do business.'0 Had the moratorium continued through the succession of Republican Gerald Ford to the Presidency following Nixon's 2 See 115 CONG. REC. 1289-90 (1969); See, e.g., R.W. Apple, Jr., Warren Consents to Nixon Request to Stay Till June, N.Y. TIMES, Dec. 5, 1968, at 1; Anthony Lewis, Warren Firm on Retiring; Leaves Date up to Nixon, N.Y. TIMES, Nov. 15, 1968, at 1; Editorial, The Warren Decision, N.Y. TIMES, Dec. 5, 1968, at 46. ' Fred P. Graham, Fortas Quits the Supreme Court, Defends Deakngs with Wolfson; Liberal Majority May Be Curbed Fee Is Explained-Justice Concedes He Made Arrangement on a Life Stipend, N.Y. TIMES, May 16, 1969, at 1; The Texts of Letters and Statements Involving the Resignation ofJustice Fortas, N.Y. TIMES, May 16, 1969, at 20. 4 Robert B. Semple, Jr., Fortas Quits the Supreme Court, Defends Dealings with Wolfson; Liberal Majonty May Be Curbed: 2 Positions Open-Nixon s Choices Can Alter the Direction Taken by Court, N.Y. TIMES, May 16, 1969, at 1. ' Fred P. Graham, A Wolfson-ForrasParley on S.E.C. Case Reported, N.Y. TIMES, May 19, 1969, at 1 ("The Senate majority leader, Mike Mansfield, said today that the Senate would make a searching investigation of future Supreme Court nominees, but that Senate Democrats would not oppose President Nixon's nominees simply on partisan grounds, if they were Republicans."). 6 See 123 CONG. REc. 1862 (1977) (documenting Jimmy Carter's inauguration). 7 Front Matter, 394 U.S. III (1969) (listing Warren, C.J., and Black, Douglas, Harlan, Brennan, Stewart, White, Fortas, and Marshall, JJ.). ' Robert B. Semple, Jr.,JusticeBlack, 85, Quits High Court, Citing His Health, N.Y. TIMES, Sept. 18, 1971, at 1. 9 James M. Naughton, HarlanRetires; Nixon Hints Poffis a Court Choice, N.Y. TIMES, Sept. 24, 1971, at 1. Like the two in 1969, these vacancies gave liberal Democrats in the Senate a strong incentive to hold these seats open, particularly given that the next presidential election was just over a year away. SeeFred P. Graham, Towarda Nixon Court,'N.Y. TIMES, Sept. 18, 1971, at 12. 1o 28 U.S.C. § 1 (2012); see also New Process Steel, L.P. v. NLRB, 560 U.S. 674, 679-82 (2010) (limiting ability of federal agencies to manipulate around a statutory quorum requirement). 340 KENTUCKY LAWJOURNAL Vol. lo6 resignation," the membership of the Court would have fallen to just four Justices in November 1975, when declining health also induced Justice William 0. Douglas to retire. 2 As the nation celebrated the 1976 Bicentennial of its independence, the four-member Supreme Court would have been left in an indefinite state of suspended animation. Only after Jimmy Carter took office as President on January 20, 1977,'" with a filibuster-proof Democratic majority in the Senate'" might the Supreme Court have been resuscitated by the addition of five new Democratic Justices. Instead of Chief Justice Warren E. Burger and Justices Harry A. Blackmun, Lewis F. Powell, 7 Jr., William H. Rehnquist, and John Paul Stevens,'" all Nixon or Ford appointees,1 the 1977 Court might have consisted of five new Democratic appointees, including a new Democratic Chief Justice, alongside Justices William J. Brennan, Jr., Potter Stewart, Byron R. White, and Thurgood Marshall.' The Court might have had a seven-member supermajority of liberals for the foreseeable future. Conservative Republicans would have conceded defeat and said, "Well played!" Right?' Of course, Mansfield did not impose a political moratorium on Supreme Court nominations from 1969 to 1977,20 but, constitutionally speaking, he could have, or so say defenders of the constitutionality of the shorter moratorium announced by Senator Mitch McConnell, Republican Majority Leader, on February 13, 2016, the day of Justice Antonin Scalia's death.2' Professor Noah Feldman, for example, shrugged, "The Senate has essentially complete control over its own rules and practices."22 When Democratic nominee Hillary Clinton appeared poised to win '1 See, e.g., Resignation of President Nixon, 10 WEEKLY COMP. PRES. Doc. 1021 (Aug. 12, 1974); Administration of Gerald R. Ford: Presidential Documents,
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