The Justice

“[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, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law” – United States Constitution Article II, Section 2

Above are the actual words around which current controversy has swirled since the death of Supreme Court Justice Antonin Scalia. Scalia’s thirty years on the country’s highest bench saw his strict originalism dogma (i.e. the Constituion meant only what the Framer’s originally wrote it to mean) transform from an outsider curiosity to the bedrock of conservative jurisprudence. His scathing dissents were usually an attack on the majority’s lack of faith to the letter of the law as well as elegant in their biting tone, and occasionally even funny. Take, for example, three lines from Scalia’s dissent in King v. Burwell, a key case challenging the constitutionality of Obamacare:

“Words no longer have meaning if an Exchange that is not established by a State is ‘established by the State”

“Context always matters. Let us not forget, however, why context matters: It is a tool for understanding the terms of the law, not an excuse for rewriting them.”

“The somersaults of statutory interpretation they have performed … will be cited by litigants endlessly, to the confusion of honest jurisprudence.”

Like most conservatives, Scalia’s beliefs seem outdated by the next generation, but it is hard to argue against his proposition that laws should be written clearly and strictly enforced by what they say rather than by the whims and interpretation of the nine unelected lawyers sitting on the Supreme Court. Like him or not, Scalia was the most influential justice of the last 30 years and should be remembered as such.

Scalia’s death and the resulting vacancy among The Nine adds an additional wrinkle to the 2016 Presidential election. Partisan battle lines have been drawn between the President and the Senate on whether a replacement to the Court should be appointed prior to the election of a new President in November. Somewhat hilariously, there are past statements by both Democrats and Republicans arguing against their current view point under previous administrations. The fact is that the next Justice will shape whether the Court remains divided on a moderate basis, as it was with Scalia (four liberals, four conservatives, and one swing vote), or becomes the the most liberal Supreme Court in decades, possibly ever. The stakes are high and both parties will fight tooth and nail to fill Scalia’s chair. Below are the two arguments presented by both sides of the aisle.


President Obama’s nominee should be confirmed by the Senate:

Democrats argue that no nomination to the Supreme Court in the history of the country has ever taken more than 125 days to confirm by the Senate and to deny Obama’s nomination in 2016 would be unprecedented obstruction by the Republican-controlled Senate.  The argument continues that constitutional powers should not cease to exist in the last 12 months of a President’s term and that Obama is entitled to fill the Court’s vacancy during his term. I would also add that a new President’s first 100 days should be focused on implementing his/her policy agenda, not fighting for a successful confirmation to the Court. A new administration’s first 100 days are the most efficient and a confirmation hearing would only distract from important legislation. A failed confirmation could derail an entire Presidency.


The Senate is well within its rights to hold up any nomination:

Republicans argue that the American people have the right to elect a new President to nominate the replacement for Scalia. They point to the letter of the Constitution (Scalia would be proud) which states that the Senate has power of consent and is not legally obligated to vote on or even meet a nominee to the Court. They rightly state that this appointment will change the direction of the Court for a generation and that the American people should have the opportunity to influence that direction at the voting booth. Finally, the Republicans counter the Democrat’s cries of unprecedented action by pointing out that not since 1888 has a divided government (i.e. the Presidency and Congress controlled by opposite parties) confirmed an election-year nominee to the Court.


As diametrically opposed as these viewpoints seem, both stances hold kernels of truth. The Democrats are obviously correct that the President’s constitutional powers do not cease just because it is an election year, however, neither do the Senate’s and the Constitution is very clear that the Republican members of the Senate have the power to withhold their consent on any nomination, election year or not. The comparisons between the average days to confirm a nomination raised by Democrats are misleading because nominations do not occur within a vacuum. Losing a nomination vote can hurt an administration’s prestige and even credibility, so only those individuals who are likely to be confirmed by the Senate are even vetted, let alone nominated. If a mistake is made and nomination is unlikely after Senate hearings, the nominee usually withdrawals from consideration (See: Bork, Robert). There are no year-long confirmation battles, the writing is usually on the wall before confirmation hearings even begin, so it should be expected that nominees to the Supreme Court have relatively short confirmation periods. That being said, the Republicans’ reference to the Election of 1888 (Benajmin Harrison over Grover Cleveland) is misleading because election year appointments to the Supreme Court just don’t happen often. Elderly justices tend to retire when their political ideology holds the White House so that sudden deaths do not shift the balance of the Court in substantial ways, so to act like the Republican position has a foundation in history is a stretch because these opportunities simply haven’t occurred often in the last 100 years.

The delicate balance of powers between our branches of government is maintained, in part, by the power of the Senate to prevent the President from reshaping the Court for the next generation simply because of the timing of Antonin Scalia’s death. The Supreme Court is the most dangerous branch of the United States’ government (a topic for another blog) so any structural changes have the chance to alter not only legal jurisprudence, but also the lives of ordinary Americans for the next 30+ years. Supreme Court justices cannot be voted from the Court and have no constituents so the Senate’s check on who sits at the high bench is of key importance. As burdensome as such an early political fight could be to a new administration in its first 100 days, it cannot be understated the importance of the next nomination to the Supreme Court. With something as important to the present and future state of the country, the decision should be supported by a public mandate, which is typically granted by a Presidential election. Thus, the Court should reflect the will of the electorate expressed in the voting booth on November 8, 2016 and the vacancy on the Supreme Court should be filled not by President Obama but rather the 45th President of the United States.


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