Last Thursday, The Daily ran an op-ed asserting that the Constitution states that the President must nominate a successor to fill the current vacancy on the Supreme Court. In order to support this legal claim, the article’s author, Stephen Paduano, relied on two pieces of evidence.

First, he cited the fact that, since 1900, only one Supreme Court nominee, Abe Fortas, has been denied confirmation in a presidential election year. Moreover, Paduano suggested that Fortas’ rejection was illegitimate because Strom Thurmond, a segregationist, was instrumental in securing that rejection.

Second, the author cited Article II § II of the Constitution, which states that the President “shall nominate…judges of the Supreme Court.” By interpreting the word ‘shall’ as meaning ‘has to,’ Paduano concludes that the President has no choice but to name a nominee. On its face, this argument appears to be compelling. But, in law as in life, appearances can be deceiving.

The fact of the matter is that the Constitution does not say that President Obama has to nominate a candidate, and the long standing precedent that Paduano invokes is not as clear as he makes it out to be.

As Noah Feldman, a constitutional law professor at Harvard Law School and one of the leading casebook authors on the subject, has argued, Article II is best read as conferring political discretion on the President to choose whether he (or she) wants to submit a nominee for confirmation. This interpretation is supported by similar language in the same section of the document that has recently come under scrutiny.

For instance, the take care clause, which is also in Article II, provides that the president “shall take care that the laws be faithfully executed.” In United States v. Texas, a recent case involving the constitutionality of the president’s deportation suspension program for undocumented immigrants who are parents of a lawful permanent resident or U.S. citizen, the Obama administration argued that the president’s program did not violate the take care clause because the word ‘shall’ in the provision gives Obama political discretion to act in the face of ambiguous statutory authority.

If the word ‘shall’ were interpreted to mean ‘has to’ in this context, it is more likely than not that the president would have to rescind his deportation delay and begin expelling the parents of American citizens from the country because the Immigration and Naturalization Act, the law at issue, does not clearly (or implicitly) give him the authority to do what he is doing.    

The word ‘shall’ obviously cannot have two meanings in the same document, much less the same section of the same document. Mr. Paduano is therefore left with a pressing dilemma. Either Obama is forced to nominate a Justice and his deportation plan is unconstitutional or, the president does have the political discretion to nominate a Justice and his program is within legal bounds. The latter seems like the more desirable result (or at least the result that liberals should prefer).  

What’s more, the long standing tradition that Paduano referenced only supports this textual argument. In actuality, from 1950 and 2015, only two Justices, Abe Fortas and Anthony Kennedy, were up for confirmation during a presidential election year. Fortas was turned away in 1968 and Kennedy was able to take his seat on the bench in 1988 – but both results had everything to do with politics and nothing to do with constitutional mandates.  

Paduano is right – Strom Thurmond did lead the charge against Fortas. But there are several points that he does not mention. First, just because an individual subscribes to a view that we find morally repugnant does not mean that everything that he has done, is doing, and will do is automatically dismissible. Jefferson was a slaveholder. This fact does not stop Americans from taking pride in the Declaration of Independence. Ad hominem attacks are unlikely to accomplish Stephen’s goal of changing the stagnant political scene. Second, there were other political reasons to reject Fortas: He received a $20,000 bribe while he was an Associate Justice, continued to give President Johnson political advice while he was an Associate Justice by writing his State of the Union addresses among other things (which is contrary to established custom), and had authored several decisions on criminal procedure during his tenure that conservatives disliked.

With regards to Kennedy, the only reason he was confirmed in 1988 was because the Democrat-controlled Senate rejected Robert Bork and Doug Ginsberg in 1987, despite the fact that both had compiled impressive records in academia and on the D.C. Circuit.

Blame the politics, not the Constitution. Senator Cruz and the Republicans never said Obama couldn’t appoint a successor – they said he shouldn’t because the president needed to recognize the extenuating political circumstances and exercise discretion by opting to not nominate someone. The devil is in the details.

– Habib Olapade

Contact Habib Olapade at holapade ‘at’ stanford.edu.