by Bruce Dunlavy (My blog home page and index of other posts may be found here.)

The current status of the vacancy on the Supreme Court of the United States (SCOTUS) is being knocked about with unflagging calls to precedent.  The Senate Republicans, led by Majority Leader Mitch McConnell of Kentucky, say that precedent favors waiting until after a presidential election to fill a vacancy occurring in the last year of the incumbent president’s term.  The Democrats reply by citing examples of precedents supporting such appointments.

The Constitution  – as it so often does – remains vague on the matter.  Article II, Section 2 delineates the powers of the president, including that the president “by and with the Advice and Consent of the Senate, shall appoint … Judges of the Supreme Court.”  There is nothing beyond that to establish a procedure, a timetable, or any other process for accomplishing this, except to say that the president may make temporary appointments when the Senate is in recess. There is no specific number of justices established, nor a stipulation that any departing justice must be replaced, nor a requirement that justices be appointed only when vacancies occur.

The issue of a recess appointment arose early in the nation’s history.  After the first Chief Justice of the United States, John Jay, resigned to become governor of New York, President Washington appointed John Rutledge to the post while the Senate was in recess.  Less than six months later, after presiding over only two cases, Rutledge lost his job when the reconvened Senate took up his appointment and firmly rejected it.

When the Constitution became effective (1789), the Senate was expected to convene only when there was business to attend to, so recesses were common.  As the role of the national government grew, however, recesses became fewer and shorter.  Within recent years, the Senate has adopted a calendar by which it is essentially never in recess.

While there is no business being conducted and almost all the members are absent, the Senate holds pro forma sessions by which a handful of Senators go through the motions of convening, saying and doing the bare minimum prescribed by rule to be considered “in session” while actually doing nothing.  In the 2014 case National Labor Relations Board v. Noel Canning, SCOTUS unanimously affirmed that the Senate is in session (or in recess) whenever it says it is.

As a result, any appointments the president may make are subject to Senate confirmation.  In Federalist 67, Alexander Hamilton argues that the Senate, of necessity, must sometimes be in a recess from which they cannot be easily or quickly recalled, thus necessitating the recess appointment process.  Since the advent of rapid communication and air travel, however, the Senate can be convened on short notice. In Federalist 69, Hamilton takes pains to stress that the president should be subordinate to the Senate, so it is doubtful that the leading Federalist among the Founding Fathers would find recess appointments necessary today.

When considering whether the president can force a vote by the Senate on any appointment – particularly a judicial one – it should be obvious that he cannot.  The Senate has for quite some time had a process whereby judicial and other appointments are routinely filibustered or placed under “hold” (by which a single Senator can block any proposal from even reaching the floor).
marbury vs madison case
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Thus the question of whether the Senate can be forced to consider a president’s judicial nomination – in an election year or any other time – was decided long ago.  The fundamental case that confirmed the power of the Federal government in general and the Supreme Court in particular was Marbury v. Madison in 1803.  This ur-decision, which established the principle of judicial review (that the Supreme Court has the authority to declare acts of Congress unconstitutional), bears directly – indeed, precisely – on the matter at issue today.

The subject of Marbury v. Madison was the appointment of Federal judges by a lame-duck president just before leaving office.  John Adams, who had been defeated for re-election, was a Federalist interested in enunciating and increasing the authority of the national government.  The incoming president was Thomas Jefferson, an Anti-Federalist Democratic-Republican who sought to place most authority in the hands of the individual States.  Adams and the Federalists appointed a host of last-minute “midnight judges” to stock the court system with their own kind before the Democratic-Republicans took control of the executive branch.

The plaintiffs in the case were William Marbury and three others who had been appointed justices of the peace by Adams five days before his term ended, and the defendant was James Madison, Jefferson’s Secretary of State.

Congress approved the appointments on February 28, 1801, and Adams’s solidly Federalist Secretary of State, John Marshall, signed and sealed the commissions of appointment.  However, these commissions were not delivered before March 4, when Jefferson’s presidency began, and Jefferson ordered Madison not to deliver them.  Since they were undelivered, he reasoned, they were invalid, and Marbury and the rest were not entitled to their posts.

Citing authority given the courts under the Judiciary Act of 1789, Marbury and the others petitioned SCOTUS to issue a writ of mandamus to force the appointments.  Jefferson and his cohort opposed this, fearing that if the judiciary decided for Marbury, it would mean  SCOTUS had total authority to bend the other two branches of government to its will.

The case was set for hearing in February of 1803.  The Court’s opinion was rendered by Chief Justice John Marshall – yes, the same John Marshall who had been Adams’s Secretary of State and who had himself signed Marbury’s commission. In addition, Marshall himself had been one of the “midnight judges,” having become Chief Justice barely a month before the end of Adams’s administration.  For that remaining month he served as both Secretary of State and Chief Justice, something unthinkable today.  A further conflict of interest was the fact that Marshall’s brother James was yet another of the “midnight judges.”

In the end, however, Marshall crafted a brilliant (and unanimous) decision that settled the issue of judicial review.  First, SCOTUS affirmed that Marbury was entitled to his position (not what to the Jeffersonians wanted to hear).  Next, however, the decision denied Marbury’s petition for a writ of mandamus on the grounds that the Judiciary Act of 1789 was unconstitutional, since it gave SCOTUS authority not enumerated in Article III of the Constitution.

Thus Marbury didn’t get the job, which appeased the Anti-Federalists. SCOTUS also avoided issuing a writ of mandamus which would have caused a Constitutional crisis because the Court had no way of enforcing it if Jefferson refused to obey it.  The real genius in Marshall’s decision was that SCOTUS established itself as the final arbiter of what is Constitutional and what is not, but it did so by denying itself an authority Congress had given it.

If McConnell and the Republican majority in the Senate wish to continue their refusal to consider any SCOTUS appointment made before the next presidential election, Marbury v. Madison is on their side, having established that the judicial branch cannot issue a writ of mandamus to order consideration of the appointment of a judge.  Whether McConnell is being politically wise remains to be seen, but the Constitution favors his position.