64 Pages Posted: 12 Jun 2017 Last revised: 16 Jun 2017
Date Written: June 9, 2017
Through a posture of determined inaction, Senate Majority Leader Mitch McConnell and Senate Republicans refused even to acknowledge President Barack Obama's nomination of Circuit Judge Merrick Garland to succeed the late Justice Antonin Scalia on the U.S. Supreme Court. The tactic held the Scalia vacancy open for over a year in order to allow Obama's Republican successor, President Donald Trump, to choose a more conservative nominee for the position. The tactic amounted to "President-shopping," in which the Senate held open the vacancy until the election of a more ideologically compatible nominator.
McConnell defended this tactic of president-shopping through determined inaction on two grounds: precedent and populism, but neither ground supports the tactic. The historical practice undercuts any attempt to infer some sort of principled policy of holding election-year vacancies for the next President to fill. The populism rationale — that voters should have indirect input on the nomination — is ultimately incoherent for a several reasons.
The use of this tactic threatens the integrity of the Court and should be opposed. The tactic has the potential for seriously impairing the confirmation process and the staffing of the Court. It also threats the legitimacy of the Court and any decision whose outcome turns on the vote of a justice who owes his appointment to ideological president-shopping. To mitigate the harm of this tactic, the Senate should adopt an explicit norm that limits the expansion of the practice. To deal with the use of the tactic by McConnell, the legal community should quarantine and carefully identify Court decisions whose outcome depends on a "McConnell majority," a judgment that could not have been rendered but-for the vote of a justice whose appointment is directly traceable to the use of this tactic. The most obvious examples are 5-4 decisions in which the vote of Justice Gorsuch was necessary to the outcome. These decisions should be regarded as equivalent to dicta and should be viewed as lacking legitimate precedential status.
Keywords: McConnell, Gorsuch, Garland, Obama, Trump, Nomination, Confirmation, Supreme Court
JEL Classification: K00, K1, K4, K40
Suggested Citation: Suggested Citation
Clark, J. Stephen, President-Shopping for a New Scalia: The Illegitimacy of ‘McConnell Majorities’ in Supreme Court Decision-Making (June 9, 2017). Albany Law Review, Vol. 80, No. 3, 2017. Available at SSRN: https://ssrn.com/abstract=2984070