Filling The Empty Chair

Please note the empty Supreme Court bench. There have been more than a few times I have thought that an empty bench would be the best thing that could happen to the Constitution. But that's not going to happen. What does happen more often than you might think is an empty seat on the bench because a Justice is ill, there is a vacancy, or a Justice has removed himself or herself from consideration of the pending case for some reason ("recusal").

Senator Patrick Leahy (D-Vermont) thinks he has a solution for a problem which occasionally leaves the Court with a 4-4 split. Strangely, given the source, it's not such a crazy idea. Beside avoiding splits which skew constitutional jurisprudence and can truly muddy the waters on major issues, the concept also suggests that in tight calls, more Justices might be likely to recuse themselves where there might or might not be a conflict of interest. In theory, at least. What Leahy is looking for is a way to fill that empty seat, but is coming up against a problem that has no parallel solution in American history.

Elena Kagan has now been confirmed to fill the seat of retired Justice John Paul Stevens. But if there had been a Senate fight of major proportions, or Kagan had been voted down, the absence of Stevens would have left that 4-4 split with some major cases coming up in the fall term. Such splits rarely serve the people or the law well. Alternatively, with all nine Justices alive, well and ready to serve, there are matters which ethically call upon a Justice to recuse himself or herself. The Justice is free to state the reasons for recusal, but that rarely happens. One reason recusal is necessary, and is likely to happen more frequently in the near future, is that there have been four new Court members in five years. That means that other than Kagan, who has never sat on the bench, cases are going to come before the Court in which the Justice was involved as a judge in the case in the lower courts. Kagan would likely have to recuse herself because of pending cases in which she was involved as Solicitor General.

With that possibility looming on the horizon, perhaps it is time to consider how a seat on the bench might be filled temporarily. Leahy told The National Law Journal "I want Justices to feel free to recuse themselves when they have a conflict of interest in a specific case." His basis for saying that is allegedly that he is concerned about clear and coherent decisions handed down by "the highest Court in the land which is the final word on constitutional law." I'll take him at his word, but I have to wonder if he is actually looking for a way to assure that all temporary vacancies will be filled by judicial activists appointed by Barack Obama. But without the enabling legislation determining how the seat would be filled before us, there's no way to know for sure that Leahy has a hidden agenda.

As an example of the likelihood of increased numbers of recusals, Justice Sotomayor recused herself in six cases in her first term. Justices Roberts and Alito have both had to recuse themselves a number of times since their presence on the high bench. The interesting one should be whether Kagan will recuse herself on the cases which will inevitably come before the Court regarding the Obama health-care reform bill. She has said she only attended one or two meetings as the legislation was being formulated, but several Republican Senators have suggested that she was far more deeply involved than that.

Leahy's inquiry was apparently caused by his ongoing grudge against Justice Antonin Scalia refusing to recuse himself in a case which centered on Vice President Dick Cheney's energy task force. Cheney and Scalia are hunting partners from time to time, and Leahy believed that Scalia had a conflict. That argument could go on forever, but for the purposes of this article, let's just assume that it had an abiding affect on Leahy. When Stevens retired, he is alleged to have contacted Leahy to suggest that Leahy look into the temporary vacancy issue. Leahy jumped at the chance.

The big problem with any scheme, good or bad, for replacing Justices temporarily away from the bench is that there are strong arguments that the enabling legislation granting Congress the right to determine certain matters of administration of the federal courts may not apply to filling a Supreme Court vacancy. If Congress can get past that hurdle by passing legislation which allows for filling a vacancy without requiring it, then it becomes a matter of form. Currently, retired Supreme Court Justices sit regularly on other lower courts where additional judges are needed, but cannot fill a temporary vacancy on the Supreme Court.

The lower court procedure is that the court with the need asks the Chief Justice to assign one of the retired Supreme Court Justices to their court. That's fine for the lower courts, since they are controlling their own choice, subject to approval or denial by the Chief Justice. But as several legal scholars have explained it, when it comes to the Supreme Court, this procedure would for all intents and purposes give the Chief Justice two votes on the Court.

Since the President nominates Supreme Court Justices in the first place, there is an argument that appointing a temporary Justice would not be out of line with separation of powers. But then the Senate can reject a regular nominee, so there's the question of whether the Senate would or should also have the right to nix the temporary appointment. A direct appointment by the Senate to a temporary vacant seat seems to be a much clearer violation of separation of powers, so we could be back to square one.

The most neutral method would be to allow only retired Supreme Court Justices to fill the vacancy and do so on a lottery or rotation basis. Statistically, that's fair, but it probably still faces opposition on political grounds as well as grounds of judicial philosophy based on which Justice comes up next. As the Washington Post points out, the three current retired Justices are comprised of two liberals (Souter and Stevens) and one moderate/liberal (O'Connor). I would also suggest that O'Connor sometimes seems simply addled. None of this would please a Republican Senate or a Republican President. On the other hand, there was a time when conservative William Rehnquist and moderate/conservative Warren Burger were the retired Justices, and that lineup wouldn't please Democrats.

As they say, the devil is in the details, and this plan may never make it to the level of an actual bill. James Sample of the Hofstra Law School says in the National Law Journal: "The challenge is that it's so difficult to divorce discussion of the proposal from the individual justices who might end up replacing the recused Justices." His suggestion for breaking the impasse would be to set up a lottery or rotation, then delay implementation for a given number of years so that the Congress isn't making its decision based on current, known Justices who would fill the vacancies. I'm not sure that's a solution, but it's certainly an interesting suggestion.