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Who should be Scalia’s new successor?

Article III of the Constitution gives the President the right to “nominate…Judges of the supreme Court.” Article III also gives the Senate the right to grant its “Advice and Consent” to such nominations—or not. Both President Obama and Senate Republicans are settling into a protracted political struggle over the appointment of Justice Scalia’s successor.

In the grand scheme of American history, this should neither surprise nor alarm us. Partisan considerations often loom large in appointments and confirmations to the Supreme Court. The role of the Court is a legitimate issue for popular discussion. Indeed, the quintessential lawyer-politician of American history, Abraham Lincoln, emerged as a national political figure in large part by criticizing the Supreme Court’s Dred Scott decision.

However, the Court stands for other vital values as well: the rule of law and constitutionalism as principled decisionmaking. While the Court is an institution of government, it also embodies the law. We expect more from the Supreme Court than political expedience.

In short, the Court is simultaneously two different institutions, the inherently political third branch of the federal government and the protector of the rule of law.

How should we reconcile these conflicting demands under current circumstances? The Court’s recent decision in Noel Canning suggests the best way to manage the conflict about Justice Scalia’s successor. As they tussle over the identity of that successor, the President and Senate Republicans should agree on a recess appointment by which one of the three living former justices temporarily returns to the Court. Such an appointment would affirm that the Court, while a political entity, is also the guardian of the rule of law.

In Noel Canning, the Court held that the President’s power to make recess appointments is triggered when the Senate declares itself to be in recess. The Senate currently avoids such a declaration by holding nominal sessions at least every third day. The evident purpose of the Senate’s practice is to preclude the President from making recess appointments.

The Senate could agree with President Obama that the Senate will recess for the limited purpose of enabling the President to reappoint to the Supreme Court one of the three living former justices, Sandra O’Connor, John Paul Stevens, or David Souter. This temporary appointment would immediately bring the Court up to full strength. Under the Constitution, this appointment would automatically “expire at the End of [the Senate’s] next Session.”

At that point, either President Obama’s nominee will have been confirmed or it will be clear that the selection of Justice Scalia’s successor will be made by the next President.

Placing one of these iconic figures back on the Court would make an important statement about the rule of the law and the Court’s role as the protector of principled constitutionalism. While political debate over Justice Scalia’s successor would proceed, the Court would also continue to do its business with a full complement of nine justices.

There would be no learning curve for any of the three former justices. Any of the three would be a full participant in the Court’s work from day one. Moreover, a former justice, returned temporarily to the Court, would likely be particularly sensitive to the weight of the Court’s prior decisions. Adherence to precedent is an important value of the rule of law.

A recess appointment for a former justice has never occurred before. But a recess appointment to the Supreme Court would not be a novelty. President Eisenhower first appointed William J. Brennan, Jr. to the Court through a recess appointment.

I suspect that none of the three former justices would be excited about accepting the proposed recess appointment. Each of them enjoys a well-deserved retirement from public life.

However, the former justices are uniquely positioned to accept temporary assignment back to the Supreme Court through a recess appointment. Such an appointment of a former justice would help affirm that, even as the nomination and confirmation of Justice Scalia’s successor generates partisan struggle, the Court can conduct its business as usual and thereby protect the rule of law.

Image Credit: “The Supreme Court” by Davis Staedtler. CC BY 2.0 via Flickr.

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