Unlikely Lame-Duck Vote in 1980 Still Reverberates

This article first appeared in the December 19, 2012, issue of the National Law Journal’s Supreme Court Insider.

Thirty-two years ago this month, one day after John Lennon was killed, the Senate confirmed Stephen Breyer to serve on the U.S. Court of Appeals for the First Circuit. Looking back, this 1980 vote on a future U.S. Supreme Court justice was remarkable and historic in its timing, speed, and long-term consequences.

In November 1980, Jimmy Carter lost a landslide election to Ronald Reagan, and Republicans won control of the Senate. Just days later, though, President Carter nominated Breyer to the First Circuit, and the lame-duck Senate confirmed him in December.

Citing the Congressional Research Service in a press release two weeks ago, Senator Chuck Grassley noted that, in addition to 2012, “the Senate has confirmed judicial nominees during a lame-duck session in a presidential election year on only three [other] occasions since 1940” (1944, 1980, and 2004).

Breyer was the only judge confirmed in the 1980 lame-duck session; in other words, he was in a category by himself between 1944 and 2004.

Breyer moved from nomination to confirmation in less than a month, which was not completely out of the norm then. Other circuit judges confirmed earlier in 1980 had gotten votes in short order. The Senate confirmed Breyer’s future colleague, Ruth Bader Ginsburg, only two months after her nomination to the D.C. Circuit. Ninth Circuit Judge Stephen Reinhardt was the exception with a nine-month gap.

Today, Breyer’s one-month lag time would be almost unthinkable, particularly for a circuit nominee. President Obama nominated William Kayatta in January of this year for a Maine seat on Breyer’s former court, the First Circuit. Despite support from Maine’s two Republican senators, Kayatta has not yet been confirmed. Two pending circuit nominees have been on hold even longer.

Without the quick, once-in-a-blue-moon vote in 1980, Breyer would have had a long wait for another opportunity. Republicans controlled the White House for the next twelve years.

Breyer served on the First Circuit during that time and beyond, eventually presiding as chief judge when President Clinton nominated him to the Supreme Court in 1994.

Clinton could have nominated Breyer to the Supreme Court without circuit experience, but the odds are against it. The last ten nominees to join the Court, except Elena Kagan, were all circuit judges.

Perhaps Breyer could have been nominated to a circuit court soon after Clinton’s election and had a short stint below. David Souter sat for only five months as a circuit judge before being confirmed to the Supreme Court, as a nominee of President George H.W. Bush.

No one can know for sure what would have happened, because lightning struck for Breyer in 1980, and the rest is history.

So, why did Breyer’s 1980 nomination go through?

Boston Globe articles at the time point to at least two reasons.

Breyer, who was serving as chief counsel to the Senate Judiciary Committee when nominated, impressed senators from both parties.

“It’s a rare personality that can survive two years in Washington and gain the admiration of a liberal Democrat like Edward Kennedy and an arch-conservative like Republican Strom Thurmond,” the Globe explained. However, “Breyer managed to do it.”

The Globe also reported that the two parties may have struck a deal. Republicans would support the Breyer nomination, while Democrats would not push a stack of other pending judicial nominees. Republicans helped force a vote on Breyer when a block was attempted and then helped confirm him.

The Key Word Is Recess: Interview with Senator Mike Lee

Speaking in a March telephone interview with Appellate Daily, Senator Mike Lee emphasized a point related to his recent no votes. The key word is recess.

A member of the Senate Judiciary Committee, Senator Lee has been voting no on judicial nominees to protest President Obama's January 4th recess appointments of Richard Cordray, as director of the Consumer Financial Protection Bureau, as well as three members of the National Labor Relations Board.

Lee indicated that some news reports about his no votes miss the mark, implying that he objects to recess appointments as a general category. No, says Lee.

The Constitution provides: "The 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."

Statements posted to Lee's website explain that "at the time of the appointments, the Senate was not in recess but rather was meeting approximately every 72 hours in pro-forma sessions." Also, "the Constitution specifically requires that each chamber of Congress must consent to the adjournment of the other chamber if the adjournment is to last longer than three days. At the time of the appointments, the House had not consented to the adjournment of the Senate for a period longer than three days."

In short, Lee's objection is that the Senate was not in recess, so the president could not make recess appointments.

Lee acknowledges that the Office of Legal Counsel takes a contrary view, namely that pro-forma sessions, where no business is conducted, do not break up a recess. According to the OLC, the Senate was in recess from January 3-23, at least, and pro-forma sessions did not change that. The Senate's actual availability to advise and consent defines a recess, not the consent-to-adjourn requirement, in the OLC's analysis.

Both sides see a constitutional encroachment: Lee, to the Senate's constitutional advise-and-consent role, through appointments that evade review, and the OLC, to the president's constitutional recess appointment power, through pro-forma sessions that prevent such appointments.

Lee also acknowledges that his Senate colleagues have not joined his method of protest (though others do agree with his underlying objection). Court action may be another path to resolving the controversy, but Lee believes it is not quick enough.

On another note, Lee commented on Justices Scalia and Breyer speaking in a Senate Judiciary Committee hearing last fall. A former clerk to Justice Alito, Lee had the opportunity to ask the justices questions, which was "surreal" and an honor, he recalled.

Kagan Hearing #3 Afternoon/Evening: Thoughts

Some thoughts on the final questioning of Elena Kagan:

1-Citation of foreign law continued to be an issue, as it had been earlier in the hearings.  In short, opponents see a serious usurpation of authority from American law, while proponents see a red herring, since courts often cite non-binding sources, including law review articles.  Kagan's answers throughout the hearing indicated that she does not view foreign law as binding, but is not categorically opposed to citing it, with one exception.  Near the end of questioning, Kagan indicated to Senator Sessions (R-AL) that she opposes citing foreign law in the Second Amendment context, since the development of that issue is "peculiar" to our country.  See also previous post re: foreign law and the new Bluebook.

2-After riding a strange hobbyhorse the day before (link here, point three), Senator Cornyn (R-TX) made headway on another topic.  Kagan's approach at Harvard Law School, raised numerous times in the hearings, had been to allow military recruiters access to students through the school's veterans association, instead of the career services office used by other employers.  While Kagan was persuasive in defending this approach, Cornyn's characterization of it as "separate but equal" did make one stop and question.

3-Speaking of hobbyhorses, in an attempt to discredit the Roberts Court, Senator Whitehouse (D-RI) pushed a theory that 5-4 decisions are a "telltale" sign that justices are driven by "particular" agendas.  He made the same attempt in earlier questioning.  This Term, the Court decided 18% of its cases by 5-4 margins, compared with 46% unanimous decisions and another 25% with only 1-2 dissents, according to SCOTUSblog's preliminary statistics.  Put another way, the Court was very often in broad agreement, nearly half the time in complete agreement, and hardly characterized by 5-4 decisions.  Kagan also did not lend support.  "I assume," she said, "the good faith of everybody on the Court."

4-As a final note, the hearings ended much as they began, with Kagan's confirmation all but ensured.  The only thing Kagan needed to do was avoid major missteps—and she did.

Kagan Hearings: Election-Year Sound Bites

Five members of the Senate Judiciary Committee are running for re-election this year: Senators Coburn, Feingold, Grassley, Leahy, and Schumer.  (Senator Specter was also running, but was defeated in the primary.)  Below are statements by some of these members, made in the Kagan hearings, that mentioned their constituents, i.e., may make good campaign sound bites.  It should be noted that others, including Senators Hatch and Feinstein, also specifically mentioned their constituents.

Leahy (D-VT): "I'm a gun owner, as are many people in Vermont, and I agreed with the Heller decision."  (6/29/10).

Coburn (R-OK): "[Solicitor General Kagan], you're different than me and you're different than many of the people that I represent."  Also, "you have a very different belief system than most of the people . . . where I come from."  (6/29/10).

Feingold (D-WI): "[A]t a recent town hall meeting I held in Stevens Point, Wisconsin, one of my constituents asked why nominees to the Supreme Court always seem to be from the East Coast, when we have plenty of fine candidates in the Midwest?  How will you strive to understand the effects of the Supreme Court's decisions in the lives of millions of Americans who don't live on the East Coast or in our biggest cities?" 

Incidentally, Kagan responded by asking, "[D]oes it count that I lived in Chicago for some period of my life?"  To which Feingold replied, "Getting closer."  (6/29/10).

Trivia: The Twilight Effect

C-SPAN's video of the Kagan hearings yesterday is divided into four parts.  As of today, the most popular is part one (43,000+ views), with the others trailing far behind: part 2 (6,000+ views), part 4 (3,000+ views), and part 3 (500+ views).  Unless interest has skyrocketed in the right to jury trial, the role of precedent, mandatory arbitration, and other topics in part one, I am going to venture a guess that Senator Amy Klobuchar's reference to the new Twilight movie made the difference.  Perhaps a Justin Bieber reference in part 3 could have helped?

Kagan Hearing #3 Morning: Thoughts

Some observations from this morning's session of the Elena Kagan hearing; in particular, exchanges with Democratic Senator Amy Klobuchar:

1-During Klobuchar's questioning about recent Supreme Court criminal decisions, Kagan noted that Justice Scalia has ruled in favor of criminal defendants in the Confrontation Clause context.  Kagan praised Scalia's "great" example of judging an issue based on law, not on any personal preference for the litigant.  Klobuchar, a former prosecutor, was criticizing the recent Court decisions as complicating prosecutions, certainly not inviting praise about Justice Scalia.  In that sense, Kagan seemed to throw and hit her own softball.

2-Klobuchar did throw a softball Kagan's way as to Chief Justice Roberts.  But, again, the result was curious.  Roberts' now-famous analogy about judges being umpires has been a drumbeat for Democrats during the Kagan hearings and Klobuchar asked Kagan about it.  Kagan began by calling the analogy "correct in several important respects," as well as "apt," and giving examples (e.g., umpires should be unbiased).  She softened her negative comments (e.g., judging is not robotic or simple), by noting that "all metaphors" have limitations.

3-Why was Kagan so quick to praise Scalia and give Roberts an escape hatch?  Practically speaking, Scalia and Roberts are likely to be her colleagues soon (Roberts, possibly for decades, as Kagan and Roberts are both in their fifties).  More generally, perhaps this is the type of approach that has generated respect and support from conservatives like Miguel Estrada, Charles Fried, and Ken Starr?  And strategically, the type of approach that may help her now with Republicans?

4-Klobuchar also worked in a reference to the new Twilight movie, asking Kagan about the Edward v. Jacob question.  Ugh, but at least the hearings got some play on Access Hollywood tonight.

Kagan Hearing #2 Afternoon/Evening: Thoughts

The marathon afternoon/evening session of the Kagan hearing just wrapped up.  Some items of note:

1-Kagan is for cameras at the Supreme Court.  This link contains current justices' views on this issue.

2-Kagan and the senators were more relaxed, or perhaps a bit slap-happy, after hours and hours at it. Kagan had some particularly good jokes, one about cameras in the courtroom and how this will mean she will need to get her hair done. The best one was in response to Senator Graham's question about where she was on Christmas (in his line of questioning about the attempted terrorist act that day in Detroit). She responded that, like most Jews, she was probably at a Chinese restaurant. Senator Schumer chimed in that they are the only places open.

3-Senator Cornyn (with a seeming, but smaller, echo by Senator Coburn) indicated that Brown v. Board of Education was correctly decided because it was a return to original intent and not an example of how constitutional interpretation can evolve.  That's a pretty tough sell.

Kagan Hearing #2 Morning: Thoughts

A few quick thoughts on the morning session of today's hearing on the Kagan nomination:

1-Kagan received questions from senators for and against the Supreme Court's recent Heller and McDonald gun cases.  Interestingly, that diverse questioning came from two Democrats:  Patrick Leahy, who identified himself as a gun owner and noted widespread gun ownership in his state of Vermont, and Dianne Feinstein, who explained the problem of gun violence in her state of California and the related gang epidemic, as well as the fact that she herself had found Harvey Milk (who had been shot).  Feinstein actually used Kagan's answer to a Leahy question (Kagan said that Heller and McDonald are settled law) to challenge Kagan—albeit a challenge-lite, probably not bearing down to the level she would have for a Republican nominee.

2-Senator Kohl, another Democrat, also put Kagan on the spot with questions along the lines of, "Which direction will you move the Court?"  An honest summary of what the senators and the public want to know (particularly those in pain over, e.g., Justice Souter), but Handling 101 would indicate that a nominee is not going to answer that question.  And asking it is going to make them squirm a bit.

3-The morning session covered a great deal of ground: First Amendment, military recruiting, guns, abortion, Commerce Clause, Executive Power, Chevron deference, etc.  For topics covered yesterday, please see this previous post: Kagan bingo.

Kagan Bingo: Hearing Day One

References from the Kagan hearing, day one: Kagan Bingo.

Kagan Hearing #1 Liveblog

Graybeards, Rising Stars, and a Lame Duck

AP introduces members of the Senate Judiciary Committee holding hearings on Elena Kagan today as "[a] cast of graybeards, rising stars[,] and a lame duck."  Link here.  One member is sure to find that Kagan is good enough, smart enough, and doggone it, people like her.