The U.S. Constitution mandates that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the supreme Court.” [Art. 2, Sec. 2.]
Following the death of Justice Antonin Scalia on February 13, President Barack Obama sent the Senate his nomination of Judge Merrick Garland.
Of course, any senator can vote “no” on Garland’s confirmation.
That’s not enough for today’s Republican Senate leadership. It totally rejects all portions of the confirmation process.
In 1987, President Ronald Reagan nominated Judge Robert Bork for the Supreme Court. Bork’s Senate hearing went badly. Nonetheless, his commitment to the Constitution caused him to insist on the full Senate’s confirmation debate and vote he knew he’d lose, saying “A crucial principle is at stake ... the deliberative process.”
Given that the Republican Party professes allegiance to a literal reading of the Constitution, their Senate leaders’ refusal to vote is difficult to square with either the language of the Constitution or its interpretation by their poster Judge, Robert Bork.
What justification do they offer? Majority Leader Mitch McConnell says they want to “give the people a voice” in the selection of Supreme Court justices. Let’s examine this rationale.
(1) For starters, the Constitution’s drafters were more interested in muffling the people’s voice than in sharing the establishment’s power with “the people.”
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(2) Ours was not to be a direct democracy with decisions made by national referendums. Elected representatives would make the decisions.
(3) There were severe restrictions on who could vote — initially only landowning, white, males over 21. African-Americans got the vote in 1870 (15th Amendment). Women in 1920 (Amend. 19), and 18-20-year-olds in 1971 (Amend. 26).
(4) The drafters restricted for whom citizens could vote. Still today, we won’t be voting for president next November. The Constitution says our president will be selected, not by the people’s voice or vote, but by “electors” appointed by each “State ... in such Manner as the Legislature thereof may direct.” (Art. 2, Sec. 1.)
(5) Nor could “the people” even select U.S. senators. “The Senate ... shall be composed of two Senators from each State, chosen by the Legislature thereof.” (Art. 1, Sec. 3; changed in 1913, Amend. 17.)
(6) Thus, respect for Justice Scalia’s search for “original meaning” should preclude Senators Mitch McConnell’s and Chuck Grassley’s deference to a “people’s voice” in the judicial confirmation process.
(7) Even if constitutionally relevant, which it’s not, that people’s voice was clearly heard with the election of President Barack Obama in 2008 and 2012. And the Constitution offers no hint that a president’s judicial appointment power is any less on the last day of their presidency than on the first.
(8) If the popular vote in presidential elections is “the people’s voice,” what is it saying? At best, a majority’s preference between two candidates.
(9) Although not constitutionally compelling, theoretically a presidential campaign could turn on one single, dominant issue. But that wasn’t true in 2008 or 2012. Clearly, neither of those elections raised, let alone resolved, the Senate’s constitutional right to refuse to undertake confirmation proceedings.
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(10) These points are equally applicable to Senator McConnell’s insistence that the 2014 election of Republican senators was a people’s voice for Senate refusal to hold judicial confirmation proceedings.
The Constitution’s drafters knew the Court’s justices could only function as intended if the public believed they were independent and non-partisan, able, honest and just.
The Republican Senate leadership’s response to Judge Garland is wrong, both constitutionally and in their “people’s voice” rationale. It also further erodes public confidence in our unique and precious judicial institutions.
Whether they are also wrong that their chosen path will best serve their political self-interest we will only know after the people’s voice is unambiguously heard in next November’s Senate elections.
• Former law professor Nicholas Johnson served as a law clerk at both the U.S. Supreme Court and Fifth Circuit Court of Appeals, and maintains nicholasjohnson.org and FromDC2Iowa.blogspot.com. Comments: firstname.lastname@example.org