What Would Nino Say?

Susan Sullivan Lagon | February 23, 2016

“The Constitution is pretty clear about what’s supposed to happen now. When there is a vacancy on the Supreme Court, the President of the United States is to nominate someone, the Senate is to consider that nomination, and either they disapprove of the nominee or that nominee is elevated to the Supreme Court.” – President Barack Obama

 “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.” – Senate Majority Leader Mitch McConnell (R-KY)

 One Supreme Court justice dies unexpectedly and suddenly all three branches of the federal government are in play. It is hard to overstate the outsized influence the late Justice Antonin Scalia had on the Supreme Court, whether he was penning majority opinions or delivering blistering dissents. Obamacare, voting rights, same-sex marriage, campaign finance, affirmative action, gun control, presidential power, environmental regulation, abortion—the list goes on and on. Likewise, his death has profound implications. His successor will likely tilt the ideological balance of the Court, a fact not lost on a president thinking about his legacy and virtually everyone running for the presidency or the Senate in 2016.

The stakes are high for both political parties. For the first time since before the Reagan era, a majority of judges serving on the federal bench have been appointed by Democratic presidents. Obama accomplished this feat thanks to a Democratic Senate so frustrated by the minority’s unwillingness to confirm nominees that it resorted to the so-called “nuclear option,” lowering the threshold for cloture on executive branch nominees and lower court judges (but not Supreme Court justices) from 60 to 51 by simple majority vote rather than by the two-thirds necessary for changing the rules. Republicans accused the Democrats of breaking the rules in order to change them and warned that there would a steep price to pay for such a heavy-handed move. Now in the majority, the Republican leadership is looking to collect.

Immediately after the news of Scalia’s death broke, Majority Leader McConnell announced that the Senate would not consider a Supreme Court nominee until after the upcoming election. Several Republicans, including Judiciary Committee Chair Chuck Grassley (R-IA), concurred even though this blanket pronouncement would mean the longest Supreme Court vacancy in history. Grassley has since moved to a “one step at a time” position, but Sen. Lindsey Graham (R-SC) was candid, acknowledging that this was “payback.” Graham was the only Republican on the Judiciary Committee who voted to advance Elena Kagan’s and Sonia Sotomayor’s nominations, but this time he would withhold his support in response to Obama’s successful appointment of three judges to the powerful D.C. Circuit in the wake of Democrats’ rules change maneuver.

A few Republicans recognized that McConnell’s swift reaction made it easy for the Democrats to label them as obstructionists just when the Senate was becoming functional again. Others, especially those up for reelection this cycle, are calibrating their responses to their states and the presidential candidates who are urging them not to move forward on any nominee.

The President, who as a senator had no qualms about voting to block the nomination of Justice Alito, promises to nominate someone who is “indisputably qualified.” If he chooses a judge already confirmed by a wide margin, it will be tricky for Republicans to explain why they object to elevating him or her to the Supreme Court. What has changed, other than the calendar?

 As the Supreme Court’s most articulate proponent of “originalism,” Justice Scalia approached the Constitution and statutes based on the original meaning of the words used by those who wrote them. He rejected his more liberal colleagues’ notion of a “living Constitution” and famously proclaimed it to be “dead, dead, dead.” How might Justice Scalia have approached the current tug-of-war between President Obama and Sen. McConnell over Supreme Court nominations? It’s a good bet he would’ve begun with the Founders’ understanding of the text of Article II.

Like so many constitutional provisions, the presidential appointment power is the result of compromise. Benjamin Franklin and James Madison feared the “monarchical” nature of giving the president the sole power to make appointments to the executive and judicial branches and insisted on a “legislative check” despite the protestations of Alexander Hamilton, James Wilson, and Gouverneur Morris, who preferred a more unfettered role for the chief executive. The result is Article II, section 2, paragraph 2:

“The President…shall nominate, and by and with the Advice and Consent of Senate, shall appoint…Judges of the Supreme Court…”

Notably absent is any reference to time, let alone any special circumstances such as during election years. Could the President weaken the Supreme Court by simply refusing to nominate anyone when a vacancy occurs? None has yet. Does the Senate have to vote on a nominee? As Sen. Harry Reid (D-NV)–then in the minority that refused to move President George W. Bush’s judicial nominees—lectured his colleagues on the Senate floor, “Nowhere in that document [the Constitution] does it say the Senate has a duty to give presidential nominees a vote.” Clearly the Founders could have stipulated a vote but they chose not to. On the other hand, it’s hard to see any other way to demonstrate consent, or lack thereof, without a vote.

In another delicious example of political party role reversal,  it was none other than President Ronald Reagan who urged the Senate to take up now-Justice Anthony Kennedy’s nomination by pleading, “Every day that passes with a Supreme Court below full strength impairs the people’s business in that crucially important body.” Ultimately Kennedy was confirmed during an election year, just like another dozen justices have been. But his role as the “swing” justice whose vote has often determined the outcome of major cases would have surprised the Founders. They were lawyers and judges themselves and devoted little time to discussing the judiciary compared to the other two branches. Judicial proceedings were very familiar and they considered “the law” to be above politics. The probably never envisioned the possibility of a tie vote. For most of the Supreme Court’s early life, its decisions were unanimous, which helped to establish its credibility.

The Constitution could have established the number of judges on the nation’s highest court but it left that to Congress.  The Court started with six justices and by 1807, there were seven. That number grew to nine in 1837 and ten in 1863. In 1866, Congress decided to shrink back to seven by attrition, but only two vacancies opened up leaving eight justices. The Judiciary Act of 1869 set the number at nine, where it has remained ever since. Only majority decisions serve as precedent, so tie votes (due to vacancy or recusal) affirm the lower court’s decision.

While all of the states specify qualifications for state judges and the Constitution imposes age, citizenship, and residency requirements for the elected federal offices, there are no requirements for serving as a judge. The Founders intended merit to be the foremost consideration. Sen. McConnell may see a role for the public in choosing justices, but the Founders did not. They could’ve given the advice and consent role to the House, representative of the people through popular election. Instead, they vested the appointment power in the President, chosen by the Electoral College, and the Senate, then elected by state legislatures. Indeed, the Supreme Court is arguably the least representative entity in the federal system!

The Supreme Court has granted the Senate wide latitude in confirming presidential appointments. For example, the Court has allowed the Senate to rely on the committee process to vet nominees rather than requiring action by the full chamber. History is full of examples of nominees who have never even gotten a hearing. A few, like Robert Bork, were voted down in committee and subsequently voted down in the full chamber. But it may be the ultimate irony that Scalia’s successor’s nomination rests in the hands of the Majority Leader, an office nowhere mentioned in the Constitution.

It is fitting to close with these words from Scalia, as applicable to the President and Senate today as they were to the Court:

            — It is not every day that we encounter a proper case or controversy requiring interpretation of the Constitution’s structural provisions. Most of the time, the interpretation of those provisions is left to the political branches—which, in deciding how much respect to afford the constitutional text, often take their cues from this Court. We should therefore take every opportunity to affirm the primacy of the Constitution’s enduring principles over the politics of the moment. Our failure to do so today will resonate well beyond the particular dispute at hand.

                                                             – Scalia, J., concurring, NLRB v. Noel Canning (2014)

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