What the Constitution has to say about the Supreme Court vacancy

In the aftermath of Supreme Court Justice Antonin Scalia’s death, the debate about his successor very quickly shifted into a constitutional register. The question became one of authority: not who should be appointed, but rather who would get to make the appointment.

{mosads}A number of prominent Republicans — including both those running for president and those in power in the Senate — have insisted that the next president should name the next justice, as a form of “letting the voters decide.” Democrats have retorted that the current president has the constitutional duty and authority to make the selection. President Obama insisted that he would “fulfill [his] constitutional responsibilities to nominate a successor in due time. There will be plenty of time for me to do so, and for the Senate to fulfill its responsibility to give that person a fair hearing and a timely vote.” Senate Minority Leader Harry Reid (D-Nev.) argued that “Failing to fill this vacancy would be a shameful abdication of one of the Senate’s most essential constitutional responsibilities.” Commentators have kept the volume turned to 11, speculating about a “constitutional crisis” in the making or about the collapse of our constitutional system.

So what does the Constitution actually have to say about the matter? Not a lot: “[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court.” The provision creates a power — and perhaps even a duty — in the president to make a nomination, but it does not give him a right to have his nominee confirmed or even considered. That power lies with the Senate.

Like most issues of major political significance, the real action takes place not in the constitutional text, but in the politics that is enabled and structured by that text. Of course the text matters: It is important that the president is the one who nominates and the Senate is the body that confirms. If different actors were involved, it would give rise to a different politics. And the written Constitution matters in less immediately obvious ways, too. Consider its rules for Senate elections: If a third of the Senate had not been up for election in 2014, the body would be very differently composed, and if a third of the Senate were not up for election this year, the confirmation politics would play out very differently.

But the text simply sets the ground rules; it provides the parameters for the political contest that is to follow. Obama will nominate someone, not because constitutional text commands it, but because it is very much in his political interest to do so. He will likely balance two factors: first, the desirability of the nominee as a justice, and second, the way that the confirmation politics will play out around a specific nominee.

Consider one person frequently suggested as a leading contender: D.C. Circuit Judge Sri Srinivasan. By all appearances, he is a centrist Democrat, close to, if not exactly at, Obama’s ideal point. More importantly, he has impeccable credentials (three Stanford University degrees, a Supreme Court clerkship with a Republican-appointed justice, two stints in the Solicitor General’s office, a partnership at a major law firm and two-and-a-half years as a judge on the D.C. Circuit); he’s an immigrant, arriving from India with his parents as a child; and he would be the first Asian-American on the Supreme Court. And he was confirmed to the D.C. Circuit by a 97-0 vote.

Many Republicans anxious to oppose any choice made by Obama would have to explain what had changed since they voted to confirm Srinivasan to the appeals court. They would have explanations available to them: perhaps they could point to some opinions he had authored as a judge that led them to reconsider their support; perhaps they would argue that different offices require different qualities; perhaps they would try to change the conversation from Srinivasan’s fitness to Obama’s authority to appoint anyone.

Democrats would, of course, push back against whatever reasons Republicans offered. They would highlight the nominee’s fitness for the office, and they would use Republican opposition to rally both immigrant and minority groups, who might see their own struggle for social and political acceptance reflected in someone like Srinivasan, and moderates, who might be convinced that the Republican opposition was simply mindless obstruction.

Arguments on both sides would play into both contested Senate seats and, of course, the 2016 presidential election. Republicans and Democrats alike would adjust their strategies as it became clear which positions and arguments were resonating with the public and which were not. At the end of the day, the confirmation of Scalia’s successor will not be so different from other contentious political issues. Consider the 2013 government shutdown: the parties were at loggerheads, and, because different parties controlled different institutions of power, each had some constitutional tools available to it. Each used its tools in pursuit of its goals: Republicans in the House refused to pass a spending bill that could win the assent of Democrats in the Senate or the White House, and Democrats refused to go along with the House’s budget. Did the impasse last forever? Of course not: As it became clear that House Republicans were losing the public politics, they gave in and reopened the government almost entirely on Democrats’ terms. The two-week shutdown was certainly not a good thing, but neither did it bring the republic to its knees.

Similarly, the contention over Scalia’s replacement will go on for some time, with various political actors using the constitutional tools as their disposal. But, in the end, the public politics will decide the winner. The process is messy, contentious and unpredictable. Theorizing about it can seem unsatisfying — the intellectual equivalent of ¯_(ツ)_/¯. Yearning for a clear answer, derivable from constitutional text, is understandable. But that’s not the constitutional system we have.

Chafetz is professor of law at Cornell Law School, where he writes on legislative procedure, the separation of powers and constitutional history. His first book, “Democracy’s Privileged Few,” was published by Yale University Press in 2007. His second book, “Congress’s Constitution,” will be published by Yale University Press. Follow him on Twitter @joshchafetz.