Senate Republicans Offer Laughable Reasons for Refusing to Confirm an Obama Supreme Court Nominee

Updated:
Posted in: Constitutional Law

Almost immediately after the news broke that Justice Antonin Scalia died, Democrats and Republicans began jockeying over the process for selecting his successor. With eleven months left in office, President Obama made the obvious point that there was plenty of time for him to screen a nominee and for the Senate to hold confirmation hearings aimed at giving or denying its “consent,” in accordance with the Constitution’s Appointments Clause. Many Senate Republicans, however, insist that the seat ought to remain open until after the inauguration of the next president. For example, less than an hour after the Supreme Court announced Justice Scalia’s death, Senate Majority Leader Mitch McConnell tweeted: “The American people should have a voice in the selection of their next Supreme Court Justice.”

That view, which was quickly echoed by other Republicans, does not pass the laugh test. Humorist Andy Borowitz captured the inanity of McConnell’s position in a satirical essay aptly titled “G.O.P. Warns Obama Against Doing Anything for Next Three Hundred and Forty Days.” After all, if Obama lacks democratic legitimacy in making judicial appointments, then why are any of his actions legitimate?

The answer cannot be that justices serve for a long time, because that renders the next election less rather than more important. Suppose that Justice Scalia’s successor serves as long as he did—roughly thirty years. Would appointment by the winner of the 2016 presidential election really give a justice deciding cases in 2046 a substantially greater democratic mandate than a justice would have if appointed by the winner of the 2012 presidential election?

Maybe Senator McConnell meant that in 2012 voters were not focused on the Supreme Court in the way that they will be in 2016. But the courts are an issue in every presidential election, even if there is not a pending vacancy. In 2012, neither President Obama nor former Massachusetts Governor Mitt Romney talked much about the Court while on the stump, but they said more than enough to let voters who cared about the issue know where they stood.

In any event, the notion that the voters must know that they are filling a particular vacancy when they go to the polls for a subsequent appointment to have democratic legitimacy is self-defeating. Even if Senator McConnell gets his wish, and the Senate takes no action on President Obama’s nominee, the nominee of the next president will need to be confirmed by a Senate composed mostly of members elected before Scalia’s death. Following McConnell’s let-the-voters-decide logic, Senators elected in 2012 and 2014 (like Senator McConnell himself) should be ineligible to participate in the confirmation process—or the Supreme Court seat will need to remain vacant until 2021, by which time all members of the Senate finally will have been elected following Justice Scalia’s death.

Originalism and Supreme Court Vacancies

There are other—jurisprudential—contradictions in the Republican argument for refusing to consider an Obama nominee or, what amounts to almost the same thing, planning in advance to reject anyone that President Obama nominates. In a guest post on my blog, University of California-Davis Law Professor Ashutosh Bhagwat explains that Justice Scalia highly valued the clarity that rules (as opposed to open-ended standards) provide, and that it is therefore a betrayal of Scalia’s legacy for his ostensible supporters to leave his Supreme Court seat vacant for what will effectively be two terms: The potential for an equally divided Court will lead to prolonged legal uncertainty.

To ultimately similar effect, historian Garry Wills argues in The New York Review of Books that the Constitution, by deliberate design of the framers, aims to limit democratic participation in the selection of Supreme Court justices (and other federal judges) by excluding the House of Representatives—the elected federal body that is closest to the People—from any role in the process. Thus, he notes the irony of Republicans purporting to honor Justice Scalia’s originalism by invoking principles antithetical to the Constitution’s original understanding.

Consider another way to understand the point Wills was making. Although scholars and judges who call themselves originalists do not agree about precisely what originalism entails, they do generally agree on the following proposition: The meaning of a constitutional provision remains fixed from its time of enactment unless and until the Constitution is amended. For example, even if most or nearly all Americans alive today think that the Constitution’s Commerce Clause permits Congress to forbid the interstate transportation of goods made with child labor, if the Commerce Clause’s original meaning did not extend to regulating products on the basis of the means used to make them—as Justice Clarence Thomas has argued—then the Supreme Court ought to invalidate a federal law banning the sale of goods made with child labor—as it did in an infamous (and subsequently overruled) 1918 ruling. If originalism is right—as the defenders of Justice Scalia’s legacy claim it is—then its rightness does not depend on its popularity or on who wins the next presidential election.

Thus, Republicans cannot simultaneously maintain that they approve of Justice Scalia’s originalism and that his seat should remain vacant until the next election gives the American People their say. The latter proposition entails that a simple change in public attitude can legitimately change the authoritative interpretation of the Constitution—which is contrary to the originalist claim that constitutional meaning does not change except by constitutional amendment.

One is left to conclude that what Senator McConnell and his Republican colleagues really mean is that the next Republican president should choose Justice Scalia’s successor, because a Democratic president surely would not choose someone who describes himself as an originalist.

The Role of Politics

To be clear, I agree with my colleague Josh Chafetz that the Constitution establishes no mechanism by which anyone can require the Senate to hold confirmation hearings during an election year or at any other time. This is one of many instances in which our constitutional system relies on political forces to hold elected officials accountable for doing their jobs responsibly.

But acknowledging that politics drives political actors should not end the conversation. After all, Republicans announcing plans to obstruct any Supreme Court nomination by President Obama have not said that they are simply flexing their political muscle. Republican Senators seem to realize that admitting that their obstruction of an Obama nominee is nothing more than a political power play would be tantamount to losing the high-stakes game of constitutional politics.

Hence, Republicans claim to be following a long tradition of consulting the American People when a Supreme Court vacancy opens during a presidential election year—or during a presidential election year during a president’s second term. There is no such tradition, but even if there were, the very judicial philosophy of the right’s own fallen hero would render it illegitimate as a reason for waiting for the next presidential election so that the American People can have their say about what kind of justice should sit on the Supreme Court.

  • Ted Harvatin

    I bet you won’t Analyze Biden’s reasons in 1992. Not something a shill would do.

    • sweetsuzee

      I’m going to insert some of the quotes here since Mr. Greco seems to think the Senate Republicans are committing political hypocrisy. Joe Biden’s 1992 comments fearing Justice White was going to retire –
      …as a result it is my view that if a Supreme Court justice resigns tomorrow or within the next several weeks or resigns at the end of the summer, President Bush should consider following the practice of the majority of his predecessors and not, and not name a nominee until after the November election is completed. The Senate too, Mr. President, must consider how it would respond to a Supreme Court vacancy that would occur in the full throws of an election year. It is my view that if the president goes the way of presidents Filmore and Johnson and presses an election year nomination, the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until ever, until after the political campaign season is over. And I sadly predict, Mr. President, that this is going to be one of the bitterest, dirtiest presidential campaigns we would have seen in modern times. I am sure, Mr. President, that after uttering these words some, some will criticize such a decision and say that it was nothing more than an attempt to save a seat on the court in hopes that a Democrat would be permitted to fill it. But that would not be our intention Mr. President. If that were the course we were to choose as a Senate instead it would be our pragmatic conclusion that once the political season is underway, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over. That is what is fair to the nominee and essential to the process. Otherwise, it would seem to me Mr. President, we will be in deep trouble as an institution.”

    • Prof_M

      You might have some interest in Vikram David Amar’s analysis of the Biden remarks:

      “….Senator Biden’s statements referred to a very different situation from today’s—Biden was speaking in June, not February, and was explicitly referring to a vacancy created by resignation, rather than by death. Why are the two different? Because a resignation in the summer of a presidential election year is itself likely to be motivated by ideology—an attempt to give a like-minded president a chance to keep that Court seat in a particular ideological camp. Responding to a partisan-manufactured vacancy with partisan stalling is worlds apart from partisan refusal to deal with a vacancy that comes about not through political calculation but instead by mortality.”

  • Dom Greco

    Your February 24, 2016 VERDICT post “Senate Republicans Offer Laughable Reasons for Refusing to Confirm an Obama Supreme Court Nominee” does an excellent job of pointing out the inconsistency of those Republican members of the Senate who at the same time:

    (X) advocate originalism in the interpretation of the Constitution and honor Justice Scalia’s originalism, and

    (Y) state that they refuse to hold hearings to consider any candidate that President Obama would propose to fill the vacancy in the Supreme Court, because as Senate Majority Leader Mitch McConnell tweeted: “The American people should have a voice in the selection of their next Supreme Court Justice.”

    As I see it from your excellent article, this position taken by the Senate Republicans represents on its face an obvious example of political hypocrisy.

    This causes me to wonder has any independent credible person or organization ever attempted to create a political “hypocrisy rating” methodology, which methodology could be used to quantify and compare the degree of hypocrisy of political parties, officeholders, candidates, etc. on issues and over time, so that, for example:

    (X) One could compare the level of Republican Senate hypocrisy on the present Obama Supreme Court nominee issue with Democratic Senate hypocrisy on other judicial appointment issues; and

    (Y) The trending of degrees of hypocrisy over time of individuals, parties, etc.?

    As you can see, I found your article very thought-provoking.

    • sweetsuzee

      The Republicans are just doing what the Democrats such as Joe Biden, Pres. Obama, Patrick Leahy and Chuck Schumer proclaimed back in I believe it was 2006 when the nomination was a full 18 months out, not just 11. I believe they said that the Thurmond Rule should prevail.

  • Many people would say that Scalia was a genius at interpreting the Constitution to mean what he preferred it to mean, but even Scalia would have been stumped on equating “advice and consent” with “reject in advance”. There is NO way those ideas can be balanced, but it does remind me of the mental gymnastics some preachers use in explaining what the Bible (or the Koran) ACTUALLY means.

    I’m sure I’m not the only person who thinks Scalia was a massive hypocrite, so perhaps it is only fitting that the process of nominating his successor should become a circus of hypocrisy in the kangaroo court of public opinion. Wise justices avoid politics, while Scalia jumped right in on Bush v Gore, a decision that is so bad that the decision itself disavows its own use as precedent. Since Scalia was smart enough to understand that setting precedent is the job of the Supreme Court, the only excuse I can imagine is that they wanted to remain free to vote the other way, just in case they got another chance to pick the president.

    I know this article was focused on his successor, but I think we should nod to his legacy, too. Few justices have created a legacy like Citizens United, where the clear preference of the vast majority of the voters is that the decision be overturned–though it would apparently take one of those Constitutional amendments to undo Scalia’s legacy there.

  • mdk4130

    Aw, Com’on. Michael, Please. You’re a smart guy . It’s embarrassing. Don’t know the Law of Politics?

  • Michael Marr

    Well, lack of confirmation hearings aside, I’m still glad Scalia retired.