My first thoughts were that a Judicial heavyweight and icon has passed. My next thoughts were that during a typical election year, candidates and their respective political parties avoid any conversation as it relates to making appointments to the Supreme Court. Why? I suppose because interjecting this fact would "complicate" the nomination process. How? By requiring candidates to focus on their views as it relates to the Constitution and the role of the High Court - which is certainly not something easily compartmentalized as "The Government is coming to take your guns away" which is a lot easier to sell to voters than actually explaining the basis for their individual opinions on how the ideological orientation of the Court hangs in the balance. Are you nodding off yet? How we view the Supreme Court's Constitutional role IS in fact a very important issue - and thus far - candidates rarely excel in explaining their views when it comes to the Supreme Court. So let's get at it.
Under Article II of the Constitution, the President has the sole authority to appoint justices to the Supreme Court. Also under the Constitution, the Senate has the sole authority to confirm presidential nominees to the Supreme Court (Advise and Consent authority). Throughout our history, no president has been denied his Constitutional right to appoint justices upon an opening on the Court. Throughout our history, the Senate has fulfilled its Constitutional role to confirm or reject said appointees. What is different about this new opening on the Court? The efforts by the Senate to stop any appointment by the president. Why such an effort? As Mitch McConnell said yesterday, “The American people should have a voice in the selection of the next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president.” Nowhere in the Constitution does it mention the right of the people to have such a voice. Nowhere. So what gives?
What gives is the typical distortion of law by political parties constantly attempting to manipulate the public with their own ideological beliefs. Why allow a president to appoint when we can delay it until we have "our guy" in the White House? But, what if "your guy" doesn't win the next presidential election? Delay some more? Obstruct until you get an appointee that conforms to your political views? Ironically, many candidates for the GOP nomination mentioned last night in their most recent debate that "elections have consequences" and we should wait for the next election! But Obama WAS elected in 2012 as president. He is currently president. His term does not end for a little over 11 months from now. Do they actually mean that only presidents within the first two years of their terms have a right to nominate to the High Court? For a bunch of politicians constantly complaining Obama has acted "outside the Constitution" they sure seem anxious to thwart him when he does have the Constitutional authority to act. Can we name one president that nominated a Supreme Court Justice while in his last year in office? Sure we can! It was Ronald Reagan who appointed Justice Anthony Kennedy in his last year of office. So what gives? Pure politics as usual - with a healthy dose of irony and hypocrisy.
So many are not aware that the Framers worried political factions could interfere with the role of the Court. That is why the Framers ensured the Institution of the High Court under Article III would remain independent of both the legislative and executive branches. How do we know this today? By reading the words of those very Framers. For example, Alexander Hamilton famously wrote in Federalist #78 the following;
On lifetime tenure - "And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws."
On independence from the Legislature - "This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community."
Knowing the Framers wished to ensure the judiciary be protected from encroachments by "...the arts of designing men, or the influence of particular conjunctures..." makes it plain that justices are not to reflect political ideologies of politicians (including the voters), but only their expanded expertise in reviewing laws based upon stare decisis and the Constitution. To claim otherwise is exactly what the Framers feared from the Senate or the President. This is precisely why President Roosevelt was completely wrong in his attempts to "Pack the Court" with justices "favorable" to his views. The very same criticism can be leveled at those attempting to delay the confirmation until after the inauguration of a new president, virtually one year from today.
By demanding there be a delay, the politicians fail to inform the public that the High Court may be completely idled until another justice is confirmed. How? Because any decisions that are split by a 4-4 decision renders the lower court's decision as law. In other words, in the event of an even split, the Supreme Court would be unable to perform as designed by the Framers under Article III. Could there be a reasonable delay if a an opening occurred within weeks of an inauguration of a new president? Perhaps, but a delay of almost a year and while the current Court is IN SESSION? Such a delay could render all pending decisions before the Court moot. So how does this serve America or the Constitution?
Now don't get me wrong. Democrats in a similar situation would try to block any appointee by a Republican president. And they too would be wrong. But timing is everything and Scalia's passing has triggered the ability of our current president to exercise his Constitutional right to appoint a replacement. We should demand the Senate do the same.
As FDR once famously said; "To reach port, we must sail - sail, not tie at anchor - sail, not drift." In an effort to move our great nation forward, let's demand our Senate forget about "setting anchor" when it comes to the Supreme Court, otherwise we all risk being set adrift! Have a great week!