Alternate title: The correct yet totally hypocritical party stance of replacing Scalia.
Photo Credit: Creative Commons/Shawn Calhoun
Justice Antonin Scalia died in his sleep on a hunting trip, leaving a vacancy on the Supreme Court which now raises a bunch of questions regarding which party gets to nominate someone to fill that vacancy.
The rules on replacing a retiring or life-retired (read: dead) Justice are: The President nominates a person for the vacancy and the Senate Judiciary Committee (Senators who are part of a kind of “judge pickers club”) publicly interviews them with questions and then the Senate votes on whether or not to confirm the nominee as a Judge on the Supreme Court. Right now the White House is filled by a Leftist Democrat and the Senate (and its judiciary committee) is controlled by center-Right Republicans. So who gets to fill this seat?
In an interesting plot twist: both Republicans and Democrats are factually correct (in different areas) and yet total hypocrites on the issue.
Specifically, Democrats claim President Obama should obviously be appointing the new judge for a speedy confirmation by the Senate and Republicans say since President Obama has less than 1 year left as President, the new one that takes office in January 2017 should be the one to make the nomination (which they hope will be a Republican).
Senator Elizabeth Warren (D-MA) may be a total partisan hack who peddles easily debunked talking points from her hippie base on the regular, but she’s right in her comments on this subject…
“Senator McConnell is right that the American people should have a voice in the selection of the next Supreme Court justice. In fact, they did — when President Obama won the 2012 election by five million votes,” Ms. Warren, a former Harvard Law School professor, said in a statement.
“Article II Section 2 of the Constitution says the President of the United States nominates justices to the Supreme Court, with the advice and consent of the Senate,” she wrote. “I can’t find a clause that says ‘…except when there’s a year left in the term of a Democratic President.’”
She added: “Senate Republicans took an oath just like Senate Democrats did. Abandoning the duties they swore to uphold would threaten both the Constitution and our democracy itself. It would also prove that all the Republican talk about loving the Constitution is just that — empty talk.”
That’s all true in the most “duh” of fashions. Unfortunately for Warren though, the same Constitution they all took an oath to uphold, applies to the other party as well, and the unmistakable fact of the matter at hand is that of course Congress can deny Obama this appointment.
Consent means the Senate is under no obligation whatsoever even to hold a vote on any presidential appointment. The Senate’s obligation is to do what the Senate wants, and only what the Senate wants. Those are the rules. To try to hold senators to a different rule is to try to change the rules on them–and people tend to resent that. Everyone is free to disagree with the positions individual senators or the Senate as a whole take on individual nominations or prospective nominations. But there is no question that senators individually or collectively can deny their consent to any actual or prospective nomination for any reason–just as the American people can vote for whomever they want, for whatever reason they want.
Indeed, President Obama isn’t even entitled to nominate a replacement for Justice Scalia–or at least, Congress can deny him that right. The Constitution gives Congress the power to decide how many seats there are on the Supreme Court. In 1789, there were only six. Given sufficient congressional support (i.e., veto-proof majorities in both chambers), Congress could reduce the number of Supreme Court justices from the current nine to eight. McConnell, Cruz, and Rubio could propose doing so right now. It seems strange to criticize senators who are merely expressing in what circumstances they will withhold their consent when Congress has the power to deny the president the ability to fill this vacancy entirely by itself eliminating this vacancy.
At the same time Democrats turn a blind eye to President Obama repeatedly ignoring constitutional limits on his power, they claim Republicans would dishonor the Constitution if they use powers the Constitution clearly grants them. That is unlikely to dissuade Senate Republicans from delaying a vote on Scalia’s successor until 2017. Nor should it.
So now that it is established that it is both an easily verifiable “duh” that yes, the President can go forward with this process as usual but yes, the Senate can halt this process as usual – the real question is what *should* happen logically, morally, and reasonably.
Here’s where the derpiness starts…
Seems to me that the timing of an election should play no role in judicial appointments and claiming otherwise is just playing politics in the kind of loophole bullcrap ways everyone hates about politics.
As a historical precedent, however…
[T]he Senate does have an obligation to fulfill its “advice and consent” obligation. Says the Constitution, the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court…” A preemptive rejection of any possible Supreme Court appointment is self-evidently in conflict with that obligation. The phrase “do not let it become about whoever Obama names” makes that explicit.
A man as versed in the Constitution as Senator Cruz should be embarrassed to posit that the nation could owe a debt to Scalia, that a “debt” to a dead man should play any role in a process governed by the Constitution, or that a sitting president’s nominee should be preemptively rejected before his or her identity is known. There is no agreed upon standard of what legitimate advice and consent entails. But any standard that rejects a nomination before it is even made fails the laugh test.
James Madison’s Constitution is not a living, breathing document that changes in meaning as an election approaches. A president is no less legitimate as a lame duck. The Framers intended for the Senate to give up-or-down votes based on a nominee’s merit, however it’s defined. The timing of an election should play no role.
The precedent of the Senate halting a nomination process was upheld by some pretty key Senators in pretty recent history, however. Mainly: New York Democratic Senator Chuck Schumer. And former Senator Joseph Biden. And former Senator Barack Obama. – i.e. – the current sitting President and Vice President who are now arguing the opposite position on account of being total hypocrites in regards to Senate rules applying to a Presidency.
In Bidens case, it’s especially egregious because his argument was made in the absence of a vacancy. He was just pre-emptively making the case that “in case this happens, the president should be advised that this is the normal way of doing things and it would be wrong to do it any different way”… Oops…