— Antonios Kouroutakis, Assistant Professor, IE University, Madrid.
Marbury v Madison is a landmark decision of the US Supreme Court. In the words of Chief Justice Marshall the doctrine of Constitutional Supremacy was established and the power of the Courts to review and strike down acts of the legislative body, if and when ordinary legislation contradicts the constitution. That idea migrated all over the world, with the exception of constitutional orders such as the UK, and New Zealand, and nowadays it is the norm rather than the exception.
However, less attention is paid to the subject matter of the dispute, which was the appointment, by the President John Adams, of Marbury as Justice of the Peace in the District of Columbia. Although the Senate approved Marbury’s nomination, the completion of the process required his commission delivered by the Secretary of State. Since Adams was defeated in the election, and the new administration was formed under President Thomas Jefferson, Madison the newly appointed Secretary refused to commission that last minute appointment.
Marbury v Madison thus signals that even during the first years of the US Republic, the appointment of judges before elections, in a period of transition, was a controversial issue. The US Constitution is silent on the issue, as many constitutions around the world, nor such topic is regulated by ordinary legislation.
The controversy over the appointment of Judges before elections
With the death of Justice Ruth Bader Ginsburg, the appointment of Justices during an electoral period has risen again to the surface. It was almost four year ago when Justice Scalia died during the last year of the Obama Administration. The then Republican controlled Senate did not consider the nomination by the Obama Administration, nominee Merrick Garland, as the Senate majority leader, Mitch McConnell, and Judiciary Committee Chairman Senator, Chuck Grassley, said that voting to replace Justice Antonin Scalia should wait until after the election when a new President will have a fresh political mandate.
President Trump nominated Judge Amy Coney Barrett to cover the vacant seat. Now with the replacement of Ruth Bader Ginsburg, the Senate, which is likewise controlled by the Republicans, faces a dilemma. Whether it would contradict its previous statements and appoint the nominee proposed by President Trump, or whether it would wait until after the election where a newly elected President would act.
In fact, the Senate has the opportunity to mark a new constitutional convention according to which appointments of judges shall be avoided close to elections. According to the New York Times, ‘in U.S. presidential election years, there have been 16 Supreme Court vacancies [including the current of RBG] that occurred before Election Day’ and out of them 8 were approved and 7 were rejected.
Justification for a new constitutional convention
To begin with, a fresh mandate of the political actors who appoint judges should not be a reason to block appointment during an electoral period. The Judiciary in principle is a counter-majoritarian institution; although they are appointed by political actors who represent the majority in the society, judicial reasoning in theory focuses on legal argument, precedent and not the views of the majority of the electorate. Judges are vested with a different kind of institutional legitimacy, based on the reasoning and the justification of their decisions, as Dyzenhaus has pointed out. Judges are expected to be politically insulated, thus the mandate of the political actors who appoint them is of low significance.
However, the appointment of justices before and during an electoral campaign period is problematic for two main reasons.
First, the timing of the appointment inevitably politicizes the process, harming the judicial autonomy of the bench. It gives the impression that appointments are based on pure considerations over political and partisan affiliations.
Second, while inevitably a Supreme Court nominating fight could work as a motivating factor to increase voters’ interest and turn out, the appointment of judges during an electoral campaign period is problematic because it is a way to entrench policies. As Levinson and Sachs accurately remark by staffing the courts with ideologically sympathetic judges, political actors, may ‘preserve their preferred policies in the face of political defeat’.
In addition, there are some practical considerations as well. How would a recently appointed judge resolve a contested election of the political actors who appointed him?
In every democracy the electoral campaign period is a marked by political debates and disagreement. But once the outcomes are announced, and the electoral circle is concluded, the healing process begins. That said, it seems that after the elections, such timing is more appropriate to appoint judges.
Another lost opportunity
While this issue is currently a developing story, unfortunately, it seems that Republican Senators line up to approve the nominee from President Trump just a month before the elections. Politics over the replacement of the Justice Ruth Bader Ginsburg prevailed, which, in the long run, would possibly have serious repercussions on the image of the Supreme Court.
Actually, it seems that another opportunity was lost to resolve the controversial issue over the appointment of judges during an electoral campaign period. The Supreme Court in Marbury v Madison rejected the application on procedural grounds as it lacked jurisdiction. William Marbury did not file a claim before the lower courts asking them to issue a writ of mandamus to force the Jefferson administration to issue the commission.
Suggested Citation: Antonios Kouroutakis, The Unfinished Job of Marbury v. Madison: Appointment of Judges during an Electoral Campaign Period, Int’l J. Const. L. Blog, Oct. 6, 2020, at: http://www.iconnectblog.com/2020/10/the-unfinished-job-of-marbury-v-madison-appointment-of-judges-during-an-electoral-campaign-period/
 Marbury v. Madison, 5 U.S. 137 (1803)
 See Stephen Gardbaum, The New Commonwealth Model of Constitutionalism; Theory and Practice (CUP 2013)
 McConnell and Grassley: Democrats shouldn’t rob voters of chance to replace Scalia , The Washington Post February 18, 2016 available at https://www.washingtonpost.com/opinions/mcconnell-and-grassley-democrats-shouldnt-rob-voters-of-chance-to-replace-scalia/2016/02/18/e5ae9bdc-d68a-11e5-be55-2cc3c1e4b76b_story.html
 Remarks by President Trump Announcing His Nominee for Associate Justice of the Supreme Court of the United States available at https://www.whitehouse.gov/briefings-statements/remarks-president-trump-announcing-nominee-associate-justice-supreme-court-united-states/
 Ginsburg Supreme Court Vacancy Is the Second Closest to a U.S. Election Ever The New York Times available at https://www.nytimes.com/interactive/2020/09/19/us/politics/supreme-court-vacancies-election-year.html?action=click&module=Spotlight&pgtype=Homepage
 See David Dyzenhaus, ‘Law as Justification: Etienne Mureinik’s Conception of Legal Culture’ (1998) 14 South African Journal on Human Rights 11 https://www.tandfonline.com/doi/abs/10.1080/02587203.1998.11834966
 Daryl Levinson & Benjamin I. Sachs, Political Entrenchment and Public Law, 125 Yale L.J. (2015). Available at: https://digitalcommons.law.yale.edu/ylj/vol125/iss2/2
 Republican Senators Line Up to Back Trump on Court Fight, The New York Times, September 21 2020 available at https://www.nytimes.com/2020/09/21/us/politics/trump-supreme-court.html