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Another Nomination Battle for Obama to Fight

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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The problem of presidential nominees who can’t get a vote from the U.S. Senate isn’t restricted to Supreme Court justices. It’s a recurring, structural issue that’s affecting executive officials of all kinds, including ambassadors.

One partial solution to unfilled executive appointments, adopted by Barack Obama’s administration and by previous presidents, is to make someone the acting head of a department, then nominate that same person to fill the job permanently. Last year, the U.S. Court of Appeals for the D.C. Circuit issued a decision that makes this fix essentially impossible. Now the Obama administration has said it will ask the Supreme Court to reverse that decision.

The D.C. Circuit opinion turned on the interpretation of the Federal Vacancies Reform Act of 1998. Having spent most of a morning piecing through the court’s opinion and the administration’s response requesting rehearing, I want to spare you the same agony -- so I’m going to oversimplify.

In short, since 1999, the executive branch has thought that the act allows the president to fill a vacancy that requires Senate approval with either another senior official from the same agency or another person from elsewhere in the executive branch who has already been confirmed by the Senate for another position. According to the executive branch, the president can make that person the acting officer and submit the same person’s name to the Senate for confirmation to the new post. In that case, it doesn’t matter as much whether the Senate confirms the nominee -- because he or she is already doing the job.

The D.C. Circuit rejected that reading of the law. According to its interpretation, the statute says quite clearly that you can’t serve as the acting officer once your name has been submitted to the Senate unless you were already the first assistant to the retired officer for at least 90 days during the previous year. In other words, the only person who could serve as acting officer while simultaneously being considered for Senate confirmation would be the previous first assistant. Another senior official whether from the same agency or another part of the executive branch, wouldn’t be allowed to serve while being nominated.

Believe me, you don’t want to know the details of the statutory arguments on both sides. What you should know is that the Supreme Court will be under tremendous pressure to accept the case. The D.C. Circuit’s opinion contradicts the settled practice of both Republican and Democratic presidents. It makes filling vacancies much harder. It also affects numerous current nominees.

Once the court takes the issue, things will get complicated fast. The truth is that the law isn’t terribly well-crafted. In explicating the bill on the Senate floor, Fred Thompson, one of its sponsors, expressed an interpretation consistent with the one the executive branch subsequently adopted. Then almost immediately, Robert Byrd, another of the bill’s sponsors, said more or less the opposite, corresponding to the D.C. Circuit’s reading.

Both senators were lawyers, although Thompson was better known as an actor and Byrd rather remarkably got his law degree at night while he was already in the Senate. Yet it’s doubtful either really comprehended the details of their floor statements. Even without Justice Antonin Scalia’s objection to use of legislative history, the history won’t resolve this case.

So if the statute is ambiguous, what follows? The issue isn’t a political one. The D.C. Circuit opinion was written by Karen LeCraft Henderson, a Republican appointee with conservative tendencies, but it was joined by two Democratic nominees, including Sri Srinivasan, a centrist often mentioned as a potential Supreme Court nominee.

The case would form a major challenge to the Supreme Court’s post-Scalia practice of statutory interpretation. Using the words alone might leave the court to uphold the D.C. Circuit. Thinking about the practical importance of settled practice, as Justice Stephen Breyer is likely to do, might well yield the opposite result.

In general, the courts deal with ambiguous federal statutes by deferring to the government agency charged with implementing them. That rule, known as Chevron deference, doesn’t apply here, because there isn’t a single government agency in charge of the question. This is a face-off between the president and the courts, and the justices won’t be overly deferential to what the executive branch thinks.

With this much uncertainty, Congress should step in and clarify the law. That might not be possible in an election season. But if Congress resolves the issue after November’s vote, it should be in time to save the Supreme Court from having to rule. The practical question of how to govern under conditions of gridlock isn’t one the court is well-placed to answer.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net