Supreme Court Vacancies: Frequently Asked Questions

Supreme Court Vacancies: Frequently Asked

Questions

,name redacted,

Legislative Attorney

March 31, 2016

Congressional Research Service

7-....

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R44440

Supreme Court Vacancies: Frequently Asked Questions

Summary

The unexpected death of Supreme Court Justice Antonin Scalia on February 13, 2016—in the

middle of the Supreme Court’s October 2015 term—has prompted questions about the process for

filling the vacancy and how the Court will proceed in hearing cases and issuing opinions. These

questions pertain to the constitutional role of the President and Senate in filling Supreme Court

vacancies, whether and when the President and the Senate must act, and how the Supreme Court

may proceed in hearing cases and issuing opinions with a vacant seat. This report provides

answers to frequently asked legal questions about filling Supreme Court vacancies.

Additionally, other CRS products address other procedural and historical issues surrounding

Supreme Court vacancies. See CRS Report R44400, The Death of Justice Scalia: Procedural

Issues Arising on an Eight-Member Supreme Court, by (name redacted)

; CRS Report R44235,

Supreme Court Appointment Process: President’s Selection of a Nominee, by (name redacted) ;

CRS Report R44236, Supreme Court Appointment Process: Consideration by the Senate

Judiciary Committee, by (name redacted) ; CRS Report R44234, Supreme Court Appointment

Process: Senate Debate and Confirmation Vote, by (name redacted) ; CRS Report R44083,

Appointment and Confirmation of Executive Branch Leadership: An Overview, by (name red

acted) and (name redacted) ; and CRS Report RL31980, Senate Consideration of Presidential

Nominations: Committee and Floor Procedure, by (name redacted) .

Congressional Research Service

Supreme Court Vacancies: Frequently Asked Questions

Contents

Introduction ..................................................................................................................................... 1

Are Nine Justices Required? ........................................................................................................... 1

Is the President Required to Appoint a New Justice? ...................................................................... 1

Is the Senate Required to Act Once the President Submits a Nomination?..................................... 2

Can the President Make a Recess Appointment for a Supreme Court Justice? ............................... 4

Could a Nominee Who Is Rejected, or Not Subject to Senate Action, Be Re-nominated? ............. 5

When May the Supreme Court Rehear Cases that Have Already Been Argued? ............................ 5

Contacts

Author Contact Information ............................................................................................................ 6

Congressional Research Service

Supreme Court Vacancies: Frequently Asked Questions

Introduction

The unexpected death of Supreme Court Justice Antonin Scalia on February 13, 2016—in the

middle of the Supreme Court’s October 2015 term—has prompted questions about the process for

filling the vacancy and how the Court may proceed in hearing cases and issuing opinions. In

particular, these questions pertain to the constitutional role of the President and Senate in filling

Supreme Court vacancies, when the President and the Senate must act, and how the Supreme

Court may continue hearing cases and issuing opinions with a vacant seat. This report provides

answers to frequently asked legal questions about filling Supreme Court vacancies.

Are Nine Justices Required?

The Supreme Court is not required to have nine Justices. The Constitution is silent on the number.

Historically, by statute Congress has set the number of Justices for the Court.1 Currently, that

number is nine: one Chief Justice plus eight Associate Justices.2 But only six Justices are needed

for a quorum.3 In the event that the Court is scheduled to hold a session but there is not a quorum,

the Justices (or the clerk or deputy clerk) may announce that the Court will not meet until a

quorum is restored.4

Is the President Required to Appoint a New Justice?

The nature of the President’s prerogatives under the Appointments Clause is unclear. The Obama

Administration has taken the position that the President has a constitutional obligation to

nominate and appoint a Supreme Court Justice when there is a vacancy.5 The Constitution’s

Appointments Clause states that the President “shall nominate, and by and with the advice and

consent of the Senate, shall appoint ... judges of the Supreme Court.”6 Courts have generally

construed the word “shall,” in the Constitution and federal statutes, to impose a mandatory

obligation.7 For instance, when interpreting the word “shall” in Article III of the Constitution, the

1

Act of Sept. 24, 1789, Ch. Xx, § 1, 1 Stat. 73 (1789) (“That the supreme court of the United States shall consist of a

chief justice and five associate justices.”); Rev. Stat. § 673 (1878) (a Chief Justice and eight associate Justices);

see generally Wright and Miller, Supreme Court-Introduction, 16B FED. PRAC. & PROC. JURIS. § 4001 (3d ed).

2

28 U.S.C. § 1.

3

Id.; SUP. CT. R 4.

4

SUP. CT. R. 4.2.

5

President Barack Obama, A Responsibility I Take Seriously, SLATE (Feb. 24, 2016, 8:00 AM),

http://www.scotusblog.com/2016/02/a-responsibility-i-take-seriously/. In response to the current debate about whether

President Obama should nominate a Justice to fill Justice Scalia’s seat versus whether the next President should, the

President stated that his appointment power is “a duty that I take seriously.” Id.

6

U.S. CONST. art. II., § 2, cl. 2 (emphasis added).

7

See, e.g., Martin v. Hunter’s Lessee, 14 U.S. 304, 314 (1816); FTC v. Tarriff, 584 F.3d 1088, 1090 (D.C. Cir. 2009)

(“It is also fixed usage that ‘shall’ means something on the order of ‘must’ or ‘will.’”); United States v. Hilario, 218

F.3d 19, 24 (1st Cir. 2000) (noting that the Appointments Clause “makes nomination and confirmation the requisite

appointment protocol”); Forest Guardians v. Babbitt, 174 F.3d 1178, 1187 (10 th Cir. 1999) (“‘Shall’ means shall. The

Supreme Court and this circuit have made clear that when a statute uses the word ‘shall,’ Congress has imposed a

mandatory duty upon the subject of the command.”); Stanfield v. Swenson, 381 F.2d 755, 757 (8th Cir. 1967) (“When

used in statutes the word ‘shall’ is generally regarded as an imperative or mandatory and therefore one which must be

given a compulsory meaning.”); see also Joel K. Goldstein, Constitutional Change, Originalism, and the Vice

Presidency, 16 U. PA. J. CONST. L. 369, 391 n.96 (2013).

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Supreme Court Vacancies: Frequently Asked Questions

Supreme Court stated that “[t]he word shall, is a sign of the future tense, and implies an

imperative mandate, obligatory upon those to whom it is addressed.”8 However, the Court has not

clarified when in the future the President needs to act. Supreme Court precedent regarding

vacancies in other positions subject to presidential appointment suggests that the President has

significant discretion as to when a vacancy “shall” be filled.9

Is the Senate Required to Act Once the President

Submits a Nomination?

The Senate’s prerogatives under the Appointments Clause are even less clear. The Appointments

Clause states that the President “shall nominate, and by and with the advice and consent of the

Senate, shall appoint ... judges of the Supreme Court.”10 Unlike the duties spelled out for the

President, the Appointments Clause does not provide that the Senate “shall” give its advice and

consent, nor does it expound on what the Senate must do to give its advice and consent—two

distinct tasks.11 Additionally, the Supreme Court has not fully interpreted the specific terms

“advice” and “consent” as they are used in the Appointments Clause, so it is not entirely clear

what actions the Senate must take, assuming any action were seen to be required. For instance,

during a 1975 symposium on “Advice and Consent on Supreme Court Nominations,” thenSenator James Abourezk noted that, “[w]hile the ‘consent’ aspect of the Senate’s constitutional

role is thus readily discernable, the same cannot be so easily said of the Senate’s duty to give its

‘advice’ on a Supreme Court appointment” or “to state precisely just how that duty is to be

exercised institutionally.”12 In the past, the Senate has provided its advice and consent by various

means, ranging from committee hearings to a vote on the Senate floor.13

Accordingly, there is disagreement in the legal community about the Senate’s role in presidential

appointments.14 Although there is no doubt that the Senate has a constitutional role in the

8

Hunter’s Lessee, 14 U.S. at 314; see also United States v. Sprague, 282 U.S. 716, 731 (1931) (“The Constitution was

written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished

from technical meaning; where the intention in [sic] clear there is no room for construction and no excuse for

interpolation or addition.”). Moreover, Chief Justice Roberts said in dissent in Arizona State Legislature v. Arizona

Independent Redistricting Commission, that when seeking to define constitutional language, “there is no better

dictionary than the rest of the Constitution itself,” 135 S. Ct. 2652, 2680 (2015) (Roberts, C.J., dissenting), suggesting

that “shall,” as used in Articles I and II of the Constitution, should be interpreted to have the same meaning.

9

See N.L.R.B. v. Canning, 134 S. Ct. 2550, 2559 (2014) (“‘Long settled and established practice is a consideration of

great weight in a proper interpretation of constitutional provisions’ regulating the relationship between Congress and

the President.”) (quoting The Pocket Veto Case, 279 U.S. 655, 689 (1929)).

10

U.S. CONST., art. II, § 2, cl. 2 (emphasis added).

11

See Tuan Samahon, The Judicial Vesting Option: Opting Out of Nomination and Advice and Consent, 67 OHIO ST. L.

J. 783, 800-01 (2006) (“[T]he phrase ‘Advice and Consent’ refers to different types of review.”); Sen. Charles McC.

Mathias Jr., Advice and Consent: The Role of the United States Senate in the Judicial Selection Process, 54 U. CHI. L.

REV. 200, 202 (Winter 1987) (noting that the terms “advice” and “consent” in the Appointments Clause “ensured a role

for the Senate in both the nomination and confirmation of judges”).

12

Subcommittee on Separation of Powers of the Committee on the Judiciary United States Senate, Advice & Consent

on Supreme Court Nominations, available at 8 GREEN BAG 2d 404, 407 (Summer 2005).

13

See, e.g., CRS Report R44083, Appointment and Confirmation of Executive Branch Leadership: An Overview, by

(name redacted) and (name redacted); Jason Eric Sharp, Note, Constitutional Law—Separation of Powers—Restoring

the Constitutional Formula to the Federal Judicial Appointment Process: Taking the Vice out of “Advice and Consent,”

26 U. ARK. LITTLE ROCK L. REV. 747, 754 (Summer 2004); Brandon P. Denning, Reforming the New Confirmation

Process: Replacing ‘Despise and Resent” with “Advice and Consent,” 53 ADMIN. L. REV. 1, 14-25 (Winter 2001).

14

See, e.g., Steven I. Friedland, “Advice and Consent” in the Appointments Clause: From Another Historical

(continued...)

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Supreme Court Vacancies: Frequently Asked Questions

appointments process, much of the disagreement surrounds how robust that role is, especially

concerning advice. Some view the Senate’s role to give advice as an active one, in which failing

to consider a nominee at all would violate its constitutional obligations.15 For example, one

former Senator has stated that “[a]mong all the responsibilities of a United States Senator, none is

more important than the duty to participate in the process of selecting judges and justices to serve

on the federal courts.”16 The Obama Administration similarly contends that the Senate has a

constitutional obligation to act—a position previously taken by the George W. Bush

Administration.17

Conversely, others assert that the Senate has no constitutional obligation to act once the President

nominates a new Justice, contending, for example, that the lack of “shall” in the advice-andconsent text in Article II creates only a prerequisite for the President’s nominee to be confirmed

by the Senate.18 Additionally, at least one Senator has reportedly taken the view that “[i]t’s up to

the Senate to decide how we do our job with regard to” advice and consent,19 suggesting that

interpreting the Senate’s role in the Appointments Clause could be seen as a political question20

(...continued)

Perspective, 64 DUKE L.J. ONLINE 173, 178-80 (2015) (noting disagreements among legal scholars about Framers’

understanding of “advice and consent”); Matthew D. Marcotte, Note, Advice & Consent: A Historical Argument for

Substantive Senatorial Involvement in Judicial Nominations, 5 N.Y.U. J. LEGIS. & PUB. POL’Y 519, 521 (2001-2002).

15

See, e.g., Letter from Debra L. Raskin, President of New York City Bar Association to Senators Chuck Grassley and

Mitch McConnell (Mar. 1, 2016), available at http://www.nycbar.org/pdf/report/uploads/20073053SupremeCourtAppointmentsClauseSenateRaskin3.1.16.pdf (contending that the Senate’s refusal to consider any

nomination to fill vacancy violates the Appointments Clause); Jeff Yates & William Gillespie, Supreme Court Power

Play: Assessing the Appropriate Role of the Senate in the Confirmation Process, 58 WASH. & LEE L. REV. 1053, 1069

(Summer 2001) (asserting that Framers’ debates on “advice and consent” provision and early historical practice support

an “active Senate role in the judicial selection process”); Mathias, supra n.11, at 203 (labeling Senate’s advice and

consent a “constitutional responsibility” that is “not a mechanical formality, but ... an integral part of the structure of

government”).

16

Mathias, supra n.11, at 200 (emphasis added).

17

See Jeff Mason, Obama Calls Out GOP: Constitution is Clear on SCOTUS Nomination Process, HUFFINGTON POST

(Feb. 16, 2016 5:29 PM, updated Feb. 17, 2016), http://www.huffingtonpost.com/entry/obama-scotusnominee_us_56c39f2be4b0c3c550530723 (“Obama told senators he has a constitutional duty to nominate a new justice

after Saturday’s death of conservative Justice Antonin Scalia and reminded them of their constitutional obligation to ...

vote to approve or reject his nominee.”); Press Release, The White House Office of the Press Secretary, Statement on

Judicial Nominations (Dec. 23, 2004), available at http://georgewbush-whitehouse.archives.gov/news/releases/2004/

12/20041223-1.html.

18

See Ilya Somin, The Constitution Does Not Require the Senate to Give Judicial Nominees an Up or Down Vote,

WASH. POST (Feb. 17, 2016), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/02/17/theconstitution-does-not-require-the-senate-to-give-judicial-nominees-an-up-or-down-vote/; Adam J. White, The

Constitution Does Not Require the Senate to Vote on a Nomination, THE WEEKLY STANDARD, (Feb. 14, 2016 6:37 PM),

http://www.weeklystandard.com/the-constitution-does-not-require-the-senate-to-vote-on-a-nomination/article/2001087

(“Can you show me the clause that says the Senate must vote on, let alone confirm, a President’s nominee?); Adam J.

White, Toward the Framers’ Understanding of “Advice and Consent”: A Historical and Textual Inquiry, 29 HARV. J.

L. & PUB. POL’Y 103, 147-48 (Fall 2005) (arguing that the Constitution’s text imposes no direct implied obligation for

the Senate to act on judicial nominations).

19

See Josh Gerstein, Senators Square Off Over Supreme Court Vacancy, POLITICO (Mar. 9, 2016 10:19 AM),

http://www.politico.com/story/2016/03/senators-square-off-over-supreme-court-vacancy-220489.

20

The Supreme Court has recognized several considerations that are relevant to a court’s assessment of whether an

issue is nonjusticiable on political grounds:

a textually demonstrable constitutional commitment of the issue to a coordinate political

department; or a lack of judicially discoverable and manageable standards for resolving it; or the

impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial

discretion; or the impossibility of a court’s undertaking independent resolution without expressing

lack of the respect due coordinate branches of government; or an unusual need for unquestioning

(continued...)

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Supreme Court Vacancies: Frequently Asked Questions

for the legislative branch to decide. However, absent a definitive resolution by the judicial

branch—which would be unlikely21—settlement of occasional disputes between the President and

Senate regarding their respective roles in the Supreme Court nomination process seem likely to be

resolved though interbranch negotiation and accommodation.22

Can the President Make a Recess Appointment for a

Supreme Court Justice?

The Constitution’s Recess Appointments Clause states that “[t]he President shall have Power to

fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions

which shall expire at the End of their next session.”23 The Supreme Court has not addressed

whether the Constitution permits the President to appoint an Article III judge (including Supreme

Court Justices) using a recess appointment, and thus the issue remains unsettled. The

Appointments Clause, though, which precedes the Recess Appointments Clause, authorizes the

President to appoint “judges of the supreme Court.”24 Accordingly, some courts have concluded

that the Recess Appointments Clause encompasses filling Article III judicial vacancies.25 For

example, the Eleventh Circuit opined in Evans v. Stephens that President George W. Bush

(...continued)

adherence to a political decision already made; or the potentiality of embarrassment from

multifarious pronouncements by various departments on one question.

Baker v. Carr, 369 U.S. 186, 217 (1962).

21

See Lee Renzin, Note, Advice, Consent, and Senate Inaction – Is Judicial Resolution Possible, 73 N.Y.U.L. REV.

1739, 1751-87 (1998) (examining potential obstacles to judicial review of “Advice and Consent” Clause, including

standing, Speech or Debate Clause, and political question doctrine).

22

Past practice of the President and Senate concerning their roles under the Treaties Clause could also offer guidance,

particularly examples of (1) when the President has signed a treaty but the Senate never gives its consent

(i.e., ratification), and (2) when the Senate has proposed conditions to add to a treaty submitted for ratification—

seemingly a form of advice. See Curtis A. Bradley, Unratified Treaties, Domestic Politics, and the U.S. Constitution,

48 HARV. INT’L L.J. 307, 309 & n.5 (Summer 2007); Curtis A. Bradley, Treaties, Human Rights, and Conditional

Consent, 149 U. PA. L. REV. 399, 404-05 (2000). This is so because the Treaties Clause, like the Appointments Clause,

is contained in Article II, Section 2, Clause 2 of the Constitution, and states that the President “shall have power, by

and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur.”

Yet, as one scholar noted, it is unclear whether the Framers intended for “advice and consent” to have the same

meaning in different contexts. See Paul A. Freund, Appointment of Justices: Some Historical Perspectives, 101 HARV.

L. REV. 1146, 1147 (1988) (“The Convention of 1787 throws disappointingly little light on the meaning of ‘advice and

consent of the Senate.’ To be really helpful, the record would have had to deal with the question whether the phrase did

or did not have the same meaning in the contexts of ratification of treaties and appointment of ambassadors, cabinet

officers, inferior federal judges, and members of the Supreme Court. Nowhere did the discussion approach that level of

concreteness.”)

23

U.S. CONST., art. II, § 2, cl. 3.

24

U.S. CONST., art. II, § 2, cl. 2.

25

See Evans v. Stephens, 387 F.3d 1220, 1222-23 (11th Cir. 2004) (en banc) (“Clause 2 explains the appointments the

President may make with Senate advice and consent; Clause 3 explains the President may make temporary

appointments to ‘all’ of these offices without Senate advice and consent. Recess appointments to the judiciary are

allowed.”); United States v. Woodley, 751 F.2d 1008, 1009-10 (9th Cir. 1985); United States v. Allocco, 305 F.2d 704,

708-09 (2d Cir. 1962); 106 Cong. Rec. 18130 (1960) (statement of Sen. Hart: “If there ever was ground for the

argument that the more specific language of article III of the Constitution should be construed as excluding judicial

appointments from the general authorization given the President in article II, time has answered it. The President does

have such power and this resolution does not argue otherwise.”); see also Lyle Denniston, Is a Recess Appointment to

the Court an Option?, SCOTUSBLOG (Feb. 14, 2016, 12:24 AM), http://www.scotusblog.com/2016/02/is-a-recessappointment-to-the-court-an-option/.

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Supreme Court Vacancies: Frequently Asked Questions

lawfully appointed a judge to the U.S. Court of Appeals during an 11-day Senate recess. Despite

reaching this conclusion, the court noted tension between Article III—which provides for tenure

during “good behaviour”26—and appointing Article III judges under the Recess Appointments

Clause,27 for whom the appointment would expire at the end of the congressional session in

which the recess appointment was made.28 Additionally, when the Supreme Court declined to

review Evans, then-Supreme Court Justice Stevens wrote to emphasize that the denial of

certiorari was not a ruling on the merits that confirms the Eleventh Circuit’s decision, perhaps

suggesting that he had doubts about the veracity of the ruling.29

Assuming, however, that the President could use the Recess Appointments Clause to appoint a

new temporary Supreme Court Justice, the Senate typically must be in recess for at least 10 days

for the recess appointment to be valid.30

Could a Nominee Who Is Rejected, or Not Subject to

Senate Action, Be Re-nominated?

Presidential nominations under the Appointments Clause expire at the end of the congressional

term during which they are made.31 But nothing in the Constitution or in any federal law prohibits

the President from re-nominating a Supreme Court nominee who was rejected or never voted on

during the Senate’s term. For example, President Eisenhower first nominated John Marshall

Harlan II to be a Supreme Court Justice on November 9, 1954, but the Senate did not vote on the

nomination.32 President Eisenhower re-nominated Harlan on January 10, 1955, and the newly

constituted Senate confirmed the nomination.33

When May the Supreme Court Rehear Cases that

Have Already Been Argued?

In general, cases may be reheard in one of two ways. First, parties may petition the Supreme

Court for rehearing after the Court issues an adverse ruling on the merits or denies granting

review for a case (sought through a petition for a writ of certiorari or extraordinary writ).34 For

cases already decided on the merits, a majority of the Court must grant the petition for rehearing,

26

U.S. CONST., art. III.

U.S. CONST., art. II, § 2, cl. 3.

28

See Evans v. Stephens, 387 F.3d 1220, 1223 (2004) (en banc) (“The conflict between these equally important

constitutional provisions is not irreconcilable: the temporary judges appointed under the Recess Appointments Clause

are an exception to the general rule of Article III.”) (emphasis added).

29

See Evans v. Stephens, 544 U.S. 942 (2005); see also JOHN PAUL STEVENS, FIVE CHIEFS: A SUPREME COURT MEMOIR

84-85 (2011).

30

See N.L.R.B. v. Canning, 134 S. Ct. 2550, 2556-57, 2567 (2014); see also CRS Report RL33009, Recess

Appointments: A Legal Overview, by (name redacted)

.

31

See Standing Rules of the Senate, S.Res. 285, 113th Cong. § 1, Rule XXXI (2013), available at

http://www.rules.senate.gov/public/index.cfm?p=RuleXXXI; CRS Report RL31980, Senate Consideration of

Presidential Nominations: Committee and Floor Procedure, by (name redacted) .

32

SUPREME COURT NOMINATIONS, PRESENT-1789, U.S. SENATE, http://www.senate.gov/pagelayout/reference/

nominations/Nominations.htm (last visited Mar. 18, 2016).

33

Id.

34

SUP. CT. R. 44.

27

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Supreme Court Vacancies: Frequently Asked Questions

which would be considered only at the request of one of the Justices who concurred in the Court’s

judgment on the merits.35 Second, the Court typically will order cases to be reheard if the Justices

conclude that they cannot resolve the case before the Court’s summer recess.36 For example, the

Court, on its own initiative, decided to rehear three cases that had been argued after Chief Justice

Rehnquist’s death but before the vacancy had been filled.37

Author Contact Information

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov

, 7-....

35

Id.; see also Califano v. McRae, 434 U.S. 1301 (1977) (Mem.); Stephen M. Shapiro, et al., Supreme Court Practice

829 (10th ed. 2013).

36

See Shapiro, supra n.34 at 11 (citing Ins v. Chadha, 458 U.S. 1120 (1982)).

37

See Garcetti v. Ceballos, 547 U.S. 410 (2006); Hudson v. Michigan, 547 U.S. 586 (2006); Kansas v. Marsh, 548 U.S.

163 (2006).

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