Supreme Court justice Ruth Bader Ginsburg’s brief foray into partisan campaign politics earlier this summer drew attention mostly for her criticism of Donald Trump. But the presidential candidate wasn’t her only target. She also took a gratuitous swing at congressional Republicans. Specifically, she criticized Senate Republicans for declining to act on President Obama’s nomination of Judge Merrick Garland to fill the Supreme Court seat vacated by Antonin Scalia’s death. “That’s their job,” she told the New York Times. “There’s nothing in the Constitution that says the president stops being president in his last year.”

Ginsburg’s answer parroted liberal political talking points. “That’s their job” echoes the “Do Your Job” bumper-sticker mantra we’ve heard all summer from liberal activists at, Common Cause, and (also known as “Organizing for Action”). The latter part—“there’s nothing in the Constitution that says the president stops being president in his last year”—repeats almost verbatim what Senator Chuck Schumer said on ABC’s This Week the day after Scalia passed away. Ginsburg’s comments were nearly indistinguishable from President Obama’s own political speech announcing Garland’s nomination: “I have fulfilled my constitutional duty. Now it’s time for the Senate to do theirs. Presidents do not stop working in the final year of their term. Neither should a senator.”

Those who argue that the Senate must vote on every Supreme Court nomination have a difficult case to make, especially since their assertion is neither supported by the Constitution’s text nor in the ratification debates that followed its drafting. Yet, for months, presidential proxies like Schumer have contended that the Senate must give Garland’s nomination an up-or-down vote. This spring, Robin Bradley Kar and Jason Mazzone published a paper titled, “The Garland Affair: What History and the Constitution Really Say About President Obama’s Powers to Appoint a Replacement for Justice Scalia.” They argue that “long-standing tradition has ripened into a constitutional rule that allows the Senate to reject or resist particular Supreme Court nominees on the merits but bars it from deliberately diverting President Obama of his constitutionally designated power to appoint a replacement for Justice Scalia.”

What does it mean to reject or resist a nominee “on the merits?” Indeed, what does it mean to “reject” or “resist” a nomination at all? If a majority of senators decide not to vote for, say, ten months, have they broken the professors’ unwritten rule? What if they decide not to vote for just six months? Or what if the senators say they’re deferring a vote for the time being, but would happily act more quickly on a nominee who appeals more clearly to the senators’ own jurisprudential preferences?

These questions are ultimately superfluous, because the Kar-Mazzone argument rests on a more fundamental factual problem: what they describe as a “long-standing tradition” is nothing of the sort. Surveying the history of Supreme Court nominations, they arrive at their conclusion only by selectively excluding the very cases that disprove their point. Or, as Ed Whelan felicitously explained, “Kar and Mazzone gerrymander their way around” inconvenient facts. On multiple occasions, when a Supreme Court seat has been vacant in an election year, the Senate has refused to act on the president’s nomination to fill the vacancy. To evade those examples, Kar and Mazzone build caveats into their characterization of the historical record, reading a consistent “long-standing tradition” into the remaining data points that, they assert, establish a rule: “Whenever a Supreme Court vacancy has existed during an elected President’s term and the President has acted prior to the election of a successor, the sitting President has been able to both nominate and appoint someone to fill the relevant vacancy, by and with the advice and consent of the Senate.”

Kar and Mazzone go on to define some of these terms narrowly, to sidestep the most glaring historical example of Senate inaction on an election-year vacancy: the Senate’s refusal to act on President Lyndon Johnson’s nomination of Abe Fortas to replace the retiring Chief Justice Warren. Warren announced his retirement in the middle of an election year, June 1968; later that month, LBJ nominated then-associate justice Fortas to be promoted to the chief’s seat, and also nominated Homer Thornberry to fill Fortas’s seat. But the Senate filibustered Fortas’s nomination, and in October 1968, LBJ finally acquiesced, withdrawing the Fortas and Thornberry nominations. The next year, newly elected President Nixon nominated Justice Warren Burger to fill the chief justice position, and the Senate confirmed him.

Kar and Mazzone navigate around this well-known counterexample by contending that there was no “actual” vacancy, since Warren had announced that his retirement wouldn’t go into effect until his successor was confirmed. In other words, faced with a well-known example that has long been cited to disprove the notion of a Senate “obligation” to vote on Supreme Court nominations, Kar and Mazzone simply reverse-engineer a narrower version of their “rule” to exclude the inconvenient fact. (Notably, Kar and Mazzone treat other contingent retirements—such as the recent examples of Justice Sandra Day O’Connor and Thurgood Marshall—as “actual” vacancies when counting up the number of such vacancies that were filled in accordance with their “rule.”)

Whelan detailed these and other flaws in the Kar-Mazzone study over the course of six blog posts; the authors replied to some of the criticisms, but even on the Fortas point, their answer is unsatisfactory. They argue that Fortas was simply an example of the Senate blocking one particular nominee, and not the Senate attempting to block the president from appointing anyone.

Even on that point, Kar and Mazzone simply misread (or fail to read) the historical record. In the 1968 debate over the Warren vacancy, Senator Robert Griffin, a leader of the Senate Republican opposition, emphasized that the Republicans would filibuster any nomination by President Johnson in the closing months of his administration: “If there are some who believe, even for purely political reasons, that the opportunity to make such nominations at this particular point in time should be reserved for the new President soon to be elected by the people, there is ample precedent for such a position.” Citing historical examples, he concluded, “There are times in the course of history when the great Senate of the United States must draw a line and stand up. This is such a time.”

Kar and Mazzone don’t acknowledge this, but others have: in the Senate’s debates on the Robert Bork nomination on October 8, 1987, Senate majority leader George Mitchell highlighted the fact that in 1968, “19 Senators committed themselves to voting against any nominee, regardless of his qualifications or his views.”

Another example that Kar and Mazzone gerrymander around is President John Tyler’s failure to convince the Senate to confirm a replacement for Justice Smith Thompson after his death in December 1843. Tyler nominated a replacement, whom the Senate voted down. Then Tyler nominated (and re-nominated) Rueben Walworth, and the Senate simply refused to vote; nearly a year later, in February 1845, Walworth finally withdrew his nomination after having been stonewalled by the Senate.

Much like the LBJ example, Kar and Mazzone sidestep the Tyler example by defining it away—their rule applies only to “elected” presidents, and Tyler took office not by election but by succession. It would be one thing if the authors’ caveats bore a tight, inherent connection to the political and constitutional dispute at hand. Instead, the professors’ paper relies on arbitrary distinctions whose only purpose is to call forth a convenient result. Kar and Mazzone also refuse to say that today’s Senate is merely exercising its own constitutional power. Rather, they accuse the Senate of constitutional theft: “Instead, Senate Republicans deliberately seek to transfer President Obama’s power to appoint Justice Scalia’s replacement to the next elected President.”

The Constitution doesn’t give the president unlimited power to appoint Supreme Court justices. The Constitution gives the president power to nominate justices, and then to appoint any justice who receives the Senate’s advice and consent. The Senate hasn’t taken President Obama’s appointment power away; President Obama could appoint a Supreme Court justice in a matter of weeks if he were to nominate someone in the mold of Scalia, such as federal judges Steven Colloton, Brett Kavanaugh, William Pryor, or Diane Sykes, all of whom would easily win confirmation by the Senate, a point that even Kar and Mazzone surely would not dispute. Of course, Obama will never nominate any of those prominent conservative judges; and knowing that, Senate Republicans say they won’t act on the Garland nomination. But that is precisely the point: President Obama still has the constitutional power to appoint a justice, even if he won’t exercise it.

Senator Griffin stressed this same point in his opposition to LBJ’s end-of-term nominations. “I want to restate again,” he said in a debate with Senator George Smathers, “[t]he Senator and others keep saying that there is some question directed at the power of the President to make these nominations. There is no question about that power. What I have said over and over again, and I say it again—the question is, What is the Senate going to do?”

“In other words,” Senator Smathers interjected, “you say he has got the power, but you just do not want him to exercise it?” Griffin replied: “He has only half the power. And it is about time the Senate realized that, especially with regard to the Supreme Court of the United States. He only has half the power, and we have the other half, and we ought to assert ourselves.” The Senate had a job to do in 1968, and it has a job to do today. It’s just not the job that President Obama’s supporters want them to do.

Photo by European University Institute/Flickr


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