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.