Editor’s note: Jason Mazzone is the Albert E. Jenner, Jr. Professor of Law and the director of the Program in Constitutional Theory, History, and Law at the College of Law at the University of Illinois Urbana-Champaign. Mazzone spoke with News Bureau business and law editor Phil Ciciora about U.S. Supreme Court nominee Amy Coney Barrett.
Is this an appropriate time for the U.S. Senate to vet a new U.S. Supreme Court justice?
Let’s talk about the Constitution. The president has power to nominate individuals to serve on the Supreme Court. They take office upon the consent of the Senate. There is no election-year exception to the process the Constitution creates. The timing issue came up in the debate last month between President Trump and Democratic presidential nominee Joe Biden. Biden argued that the choice of the next justice should be delayed until after the November election so that the voters have an opportunity to weigh in. Trump responded that the voters have weighed in by electing him in 2016 and again in 2018 by keeping the Senate in Republican control, and that his term of office is four years, not three.
As a constitutional matter, Trump is right. He does not lose the power to nominate as an election approaches and the Senate does not lose its power to confirm or reject nominees just because an election is pending. There is also no pandemic exception to presidential or senatorial power. Of course, the coronavirus pandemic might make effective uses of those powers more difficult. Sick or contagious senators might make it difficult to meet senatorial quorum requirements or make it harder in a close case to secure a majority vote on a nominee.
Will Amy Coney Barrett’s seat be tainted as illegitimate given all the on-the-record pronouncements from Senate Republicans about filling a Supreme Court vacancy so close to a presidential election?
No. Remember that in 2016, after the death of Justice Scalia, Senate Republicans refused to consider President Obama’s nomination of Merrick Garland. That allowed President Trump to appoint Neil Gorsuch to the court after he took office in 2017. Some Democrats speak of a stolen seat. But that characterization overlooks the requirement that an appointment requires both nomination by the president and consent by the Senate. It would have been better in my view for the Senate in 2016 to have considered Garland on the merits. But the Senate wasn’t obligated to do so.
In any event, no sensible person thinks Gorsuch himself is tainted or otherwise a lesser member of the Supreme Court. Once someone is on the court there is not much value in focusing on how they got there.
For the good of the country and in the interest of comity, should hearings be postponed until after the presidential election or just pushed back till after the inauguration?
The Constitution doesn’t require the Senate to hold hearings on the Barrett nomination at this time or ever. The Senate certainly could decide not to move ahead, but I doubt comity would be promoted. No outcome in the November election will smooth out the confirmation process. If Trump is reelected and the Senate stays in Republican control, Democrats will still oppose the Barrett nomination. If Biden wins the White House and the Senate remains Republican, the Senate would immediately move to confirm Barrett before Biden takes office and it likely also will resist any future nomination by Biden. If Trump is reelected but Democrats take the Senate, outgoing Republicans will want to confirm Barrett before they leave office and Democrats will work to block any future Trump nominees.
Peace is not on the horizon.
Nominee Amy Coney Barrett would replace the iconic Ruth Bader Ginsburg. But based on her opinions from the bench and her scholarship, is Barrett more the intellectual heir to the late Justice Antonin Scalia?
I suspect she would be most like a Justice Barrett. It is hard to compare a brand-new justice to justices we evaluate after long periods of service. Work as a lower court judge or as an academic also isn’t necessarily predictive. The Supreme Court is a different setting. It hears cases that have divided lower courts, as to which there are often very good arguments on each side. And whatever we might think about the preferences of an individual justice, it is a court of nine.
If there’s a judicial battle over the presidential election that makes its way to the Supreme Court similar to Bush v. Gore in 2000, would a newly seated Associate Justice Coney Barrett need to recuse herself?
Recusal depends very much on the particulars of the case before the court. A Justice Barrett would follow the same approach to recusal that every member of the court follows. Federal law imposes quite minimal recusal requirements upon the justices. The federal recusal statute requires recusal when a judge’s “impartiality might reasonably be questioned,” for example, because the judge has a financial interest in the outcome, was previously a lawyer in the same case or harbors bias towards a party.
In contrast to all other federal judges, however, Supreme Court justices are not bound by the detailed recusal rules contained in the judicial Code of Conduct. In addition, the individual justices decide for themselves whether to recuse and those determinations are not subject to review by anybody.
Recusal is very rare at the Supreme Court. A reason is that in contrast to other courts, if a justice is recused, there is no replacement to hear and decide the case. The justices do not recuse themselves just because the president who nominated them is a party in a case.
How realistic are the calls from Democrats to expand the number of seats on the Supreme Court?
The idea is a non-starter if the Democrats don’t win the Senate, the House, and the White House. The Constitution itself does not specify any particular number of seats on the court, so the number could certainly be expanded through legislation. Adding seats would not be without political risk. Democrats would have to be confident they could create and also fill the new seats before the next mid-term election. And tit-for-tat games don’t just stop on their own: Republicans in the future could add seats as well.