SAN DIEGO, Feb. 24, 2016 —The ironically mistimed death of Chief Justice Antonin Scalia in the midst of a fierce election year is predictably moving both Democrats and Republicans to their respective corners of the ring.
The question on the table: Inasmuch as this is an election year, should Scalia’s replacement be postponed and appointed by the next president?
Senate Majority Leader Mitch McConnell seems to think so. He says, “This nomination will be determined by whoever wins the presidency in the polls. I agree with the Judiciary Committee’s recommendation that we not have hearings. In short, there will not be action taken.”
It’s no big surprise that Democrats such as Sen. Chuck Schumer are taking serious issue with this decision. Schumer has referred to McConnell as an “obstructionist.”
Of course Schumer didn’t feel such blocking was obstructionist when the shoe was on the other foot.
Back in July of 2007, anticipating the 2008 election year in front of them, Schumer said, “We should not confirm any Bush nominee to the Supreme Court, except in extraordinary circumstances.”
Joe Biden said something similar in 1992 regarding Bush 41, suggesting that he should refrain from any judicial nomination until the election was over:
It is my view that if a Supreme Court Justice resigns tomorrow or within the next several weeks, or resigns at the end of the summer, President Bush should consider following the practice of the majority of his predecessors and not name a nominee until after the November election is completed.
The Senate too, Mr. President, must consider how it would respond to a Supreme Court vacancy that would occur in the full throes of an election year. It is my view that if the president goes the way of Presidents Fillmore and Johnson and presses an election year nomination, the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until ever — until after the political campaign season is over.
And I sadly predict, Mr. President, that this is going to be one of the bitterest, dirtiest presidential campaigns we will have seen in modern times.
I’m sure, Mr. President, after having uttered these words, some, some will criticize such a decision and say that it was nothing more than an attempt to save a seat on the court in hopes that a Democrat will be permitted to fill it. But that would not be our intention, Mr. President, if that were the course we were to choose as a Senate to not consider holding the hearings until after the election. Instead it would be our pragmatic conclusion that once the political season is underway, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over. That is what is fair to the nominee and essential to the process. Otherwise, it seems to me, Mr. President, we will be in deep trouble as an institution.
That was then. This is now. As President Obama’s VP, does Biden feel differently today? Take three guesses and the first two don’t count.
Trying to clean up his mess, Biden said, “This is not an accurate description of my views on the subject. In the same statement critics are pointing to today, I urged the Senate and White House to work together to overcome partisan differences to ensure the court functions as the Founding Fathers intended. That remains my position today.”
Well, that explains everything! Yes, “working together” must certainly be the true context and interpretation of those words. Clearly he urged the Senate and White House to work together, so long as working together meant “not naming a nominee until after the November election is completed.”
Thanks for clearing that up, Joe!
Of course the easiest way to ignore any call to consistency in a political party is to deflect the accusation and point out the hypocrisy of the opposing party.
In this vein, Democrats eagerly remind us that Mitch McConnell has also changed his tune.
While warning against the Democratic blocking of any potential 2008 Bush nominee, McConnell said, “I would hope our Democratic colleagues resist the desire by some to drag us into the judicial confirmation brinkmanship and establish a precedent they will regret.”
Politics on both sides! Hypocrisy on both sides!
So how do we unpack all this?
It’s true that President Obama has a constitutional right to nominate the next justice whenever a vacancy occurs. It is just as true that the Senate has a constitutional right to reject those same nominations should they feel they will not correctly guard the Constitution.
Observable political motivations on both sides of the isle can also be viewed as a fact.
Unfortunately, there is another fact, far more important, but far less discussed.
All politics put aside, the Republicans have legitimate moral reasons to block the nominations of this president, not merely during an election year, but any time. After all, this is a president who has shown contempt for our Constitution in the past, a president who seems to feel he has a right to give an executive order whenever Congress fails to “work in a bi-partisan way,” bi-partisanship being defined as Congress caving in to his demands.
All of a sudden, this same president is concerned that the Constitution is being violated. One wonders how he says it with a straight face.
The only kinds of justices we can expect from such a president are the kind who view the Constitution as a “living, breathing document.” That’s code for legislating from the bench.
The real problem here is that in the course of American history far too much power has been ceded to the judicial branch of government to the degree that it ends up having the final say over the other two branches.
It should not matter who our president is, or what party he is affiliated with, or what his agenda is. If the Supreme Court is reading our Constitution honestly, there is no place for politics. But the days when all nine justices abided by such a rule are long over. All too often our very Supreme Court is itself being unconstitutional. And so, we are sadly forced to consider the politics of judicial nominees. Originally, this was never to be the case.
No where in the constitution does it say that the Supreme Court interprets the Constitution. Its job is to be the highest court in the land and enforce the Constitution. True, that will include examining new legislation to see if there is any constitutional violation, (which is probably what most people mean when they use the word “interpret” anyway) but the justices are not there to find some hidden or scholarly meaning that the rest of us are unable to read for ourselves in the document’s plain words.
The interpretation tradition began when Thomas Jefferson refused to install some justices John Adams had appointed before he left office. Since the judges were never inaugurated, Jefferson didn’t feel obligated to use them. His government was sued in a landmark case called Marbury vs. Madison (1803). Because this unusual situation had never come up in such a high-level, complicated scenario, litigation turned to the Supreme Court, which ordered Jefferson, via his secretary of state, James Madison, to appear before them and explain himself. Jefferson ignored them. Marbury (one of the justices spurned by Jefferson) referred to the Judiciary Act of 1789 as a basis for the court being able to issue such commands. Ironically, the court, after first showing sympathy to Marbury, pronounced a contradictory ruling.
It decided that the Judiciary Act was unconstitutional, because it gave the Supreme Court more power than the Constitution intended. So even though the justices were sympathetic to Marbury, and insisted the law set up by Congress was on his side, they ultimately ruled against him by deeming that same act of Congress to be technically unconstitutional. Marbury, according to the high justices, should have started with a lower court rather than the ultimate court in the land and therefore, they could not issue the verdict that both they and he wanted.
This decision was actually a political stroke of genius under the leadership of Chief Justice John Marshall, who found a way to lecture and chastise his rival, Jefferson, without giving the popular president an actual court order that he would certainly refuse to obey. In short, Marshal devised a clever strategy to save face by having his cake and eating it too. Nevertheless, in calling an act of Congress unconstitutional for giving too much power to the court, this landmark ruling established a tradition about the Supreme Court telling us what the Constitution intended. Ironic indeed.
But here’s the most interesting effect to note: Jefferson disagreed with the court’s new-found powers, even though, in this particular instance, the ruling was personally convenient, as now he did not have to appoint the justices. Jefferson feared that if this understanding of judicial power were accepted, it would be “placing us under the despotism of an oligarchy” (Thomas Jefferson to William C. Harvis, 1829 ME 15: 277).
Unfortunately, 1803 spawned a custom that we never quite shook. It established what is commonly called “case law” and yes, law schools teach and generally accept case law. I am convinced this is based upon a mistake, grandfather claused into a tradition that has taken on a life of its own. Today we live in the debris of that fateful Marbury vs. Madison ruling. Not only the Supreme Court, but other courts along the ladder make decisions to overturn the will of the people or the laws of Congress.
And so, never mind politics. The issue is history and constitutional accuracy. The very idea that one branch of government can single-handedly overturn the will of the other two branches would make our forefathers turn in their graves. Ditto for unconstitutional executive orders where a president puts into practice something that the Constitution assigned to Congress, such as laws regarding immigration and naturalization. Should any future make up of the Supreme Court allow such practices to remain, due to a misunderstanding of the court’s own power, the matter will just be doubly unconstitutional.
Yes both Republicans and Democrats are being political. But sometimes, political motivation aligns itself with constitutional motivation. The Republicans must hold their ground, political or not.
This is Bob Siegel, making the obvious obvious.
The Washington Examiner contributed to the hard news portions of this article.
Bob Siegel is a weekend radio talk show host on KCBQ and a columnist. Details of his show can be found at www.bobsiegel.net
Bob often responds to readers comments over the air.