by John Lawrence
Just when it appeared that the 2016 presidential campaign could not possibly become more of a cacophonous contest, Supreme Court Justice Antonin Scalia dies and suddenly, a whole new layer of contention has oozed its way to the surface of the national debate.
President Obama, conservatives assert, is a lame duck and therefore should not appoint a Scalia successor until the people have spoken (assuming one can discern “the people’s” Supreme Court preferences from an election). Obama, noting that one-eighth of his presidency is still before him (three times as long as the longest confirmation process in recent memory, that of Clarence Thomas) intends to exercise his constitutional right to send a nominee to the Senate.
Majority Leader Mitch McConnell and Judiciary Committee Chairman Charles Grassley have already declared they will not allow the Senate to consider any Obama nominee, not even one like Appeals Court Judge Sri Srinivasan, who in 2013 was confirmed in a 97-0 Senate vote that included support from Mitch McConnell, Chuck Grassley, Marco Rubio and Ted Cruz.
The Court is in the midst of considering a slew of highly controversial issues including abortion, health care, and affirmative action. Without a replacement, it is possible that there will not be a majority for either side, and yet one more branch of the American government can move into gridlock!
The debate over whether or not a “lame duck president” has the right to nominate a Court appointee is a ridiculous one. The Constitution, whose immutable clarity Justice Scalia dedicated his career to defending, was, well, quite clear. It says right there, in Section 2 of Article II of the Constitution that “The President” (I note no references to “lame ducks” or any other fowl) “shall nominate” (not “shall nominate except in the last year of his term”) “Judges of the supreme Court.” Period.
Now, of course, few really believe that the precise words of the Constitution, set down nearly 230 years ago, are to be taken absolutely literally (the late Justice Scalia being an exception). So when strict constructionists like McConnell or Ted Cruz pontificate about why Obama should be precluded from fulfilling his clear constitutional duties, they are revealing their truly mendacious and conniving intentions.
Coincidental to this moment’s focus on strict constructionism is the publication of The First Congress by historian Fergus Bordewich. While strict constructionists like Scalia would have us believe that the words of the Constitution were written by perfect men and venerated even then as immutable truths, the actual history is anything but so idyllic. As Bordewich pointed out, the Constitution – itself the product of exhausted negotiation and compromise – was the skeleton upon which early legislators had to build the actual structure and design of a national government that lacked not only a permanent home, but credibility in the skeptical minds of many who had fought the Revolution. In formulating that structure for the federal government, senators and congressmen of 1789-1790 (as have all since) made countless compromises and concessions to cobble together the votes required (11 in the Senate, 33 in the House) to pass a law. President Washington’s authority to veto a law passed by Congress was even debated; the Supreme Court sat around with nothing to decide since the appellate and district courts did not yet exist. In other words, they were making it up as they went along.
Nothing against the Founding Fathers, but the point is this: it’s kind of ridiculous to assert that we of the 21st century posses some clairvoyance to know how they might have addressed highly complex contemporary issues. They were fabricating a country, and they, of all people, realized the uncertainty with which the finality of their work would be viewed by future generations, which is why they allowed for an amending process. They were cutting deals like a rug dealer during a “going out of business” sale, as all legislators, in all times, must do.
But on this point they were quite clear: the President nominates Supreme Court justices, and the Senate is supposed to consider them: up or down, but not rewrite the intent of the Constitution and obstruct the operations of the third branch of government.
The emergence of this new battle may well have great salience in the campaign. Politicians are always struggling to convince the electorate to pay attention to issues that seem slightly out of focus for the average voter, such as how a presidential contest will affect the composition of the Supreme Court. Scalia’s death, and the coming debate over whether, and with whom, to fill the vacancy, moves the Court issue front and center, impossible to ignore. Indifferent millennials will be shown a powerful lesson about the election’s ramifications for the Court. Issues like abortion rights, gay rights, gun control, health care and others may serve to motivate voters to become more engaged, realizing the outcome of the election unquestionably will impact not only the Scalia seat, but perhaps two or three others that could become open in the next five years.
Secondarily, the debate over whether to consider an Obama appointee may well impact some Senate races. No Republican senator up for re-nomination will dare side with Obama’s right to nominate a replacement as long as he or she may face a primary challenge for such apostasy. Donald Trump honed the team cheer in Saturday’s GOP debate: “I think it’s up to Mitch McConnell and everybody else to stop it: It’s called delay, delay, delay.” I can almost hear James Madison uttering those stirring words.
In general elections, however, such hardline positions could come back to hurt vulnerable GOP senators in states like Ohio, Wisconsin and Pennsylvania, opening them to the charge of excessive partisanship while the Democratic opponent need only ask that the senator do his or her duty and “advise or consent” but not obstruct. Doing so would be the strict obeisance to the Constitution that Antonin Scalia would have endorsed.