After Justice Antonin Scalia’s death, Republicans announced that they would refuse to confirm any of Obama’s Supreme Court nominees because of the proximity of the election. They are correct to do so, but they should have framed it differently.
Since Republicans have announced their refusal, many on the left have charged them with ignoring the Constitution. This is nonsense.
It is true that the Constitution gives the president the authority to nominate justices. No one disputes that President Obama has the authority to make a nomination. However, the Constitution requires that appointments only take place with the “Advice and Consent of the Senate.” Whether or not it’s politically desirable, there is no constitutional requirement whatsoever that the Senate even have a vote, let alone confirm the nominee.
Some Democrats might recognize this and argue that while the Senate does have the discretion to confirm or not, it should do so as long as a candidate is qualified. This is wrong in two ways.
Firstly, the “confirm any qualified person” standard has already been rejected by many prominent Democrats. For instance, in 2007, Chuck Schumer (D-NY), said “I will recommend to my colleagues that we should not confirm any Bush nominee to the Supreme Court…” In 2006, both Obama and Clinton went even further and tried to filibuster Samuel Alito’s confirmation. In fairness, White House Press Secretary Josh Earnest has said that Obama regrets his filibuster attempt. Of course, one is allowed to admit past errors, and also many Democrats today didn’t necessarily agree with those tactics back then. Still, many of the Democrats who are criticizing Republicans today do have obstruction as part of their record.
The second way in which the “confirm any qualified person” standard is wrong is that it ignores the monumental importance of the Supreme Court.
In our legal system, the Supreme Court is the final arbiter of constitutional interpretation. There is no appeal if the Supreme Court decides a case incorrectly. It therefore behooves the senators to take seriously their role in confirming justices.
If there were widespread agreement about how to interpret the Constitution, this would be less of an issue. There isn’t widespread agreement, though. There are many theories of constitutional interpretation. Scalia was what is called an originalist. This means he sought to interpret the Constitution in the context of how the people who ratified a particular provision would have understood it. Under originalism, constitutional change would take place only through the democratic process of amendments.
This contrasts with the non-originalist approach favored more often by the left. This approach often favors policy and moral philosophy, rather than historical meaning, as the best way to interpret the Constitution.
The 1965 case Griswold v. Connecticut is a good example of how the theories diverge. In that case, the Supreme Court found that a ban on contraceptives violated the Constitution’s “right to privacy.”
Few today would argue that the government has any business in prohibiting contraceptives entirely, so what could be wrong with that decision? Well, there is no provision of the Constitution that mentions or even clearly alludes to a “right to privacy.”
Instead, the the majority said that the alleged right was found in the “penumbras” and “emanations” of various parts of the Constitution, including protection against self-incrimination. Another justice found the supposed right in the Ninth Amendment, three others in the Fourteenth.
Originalists see such reasoning and reject it as nothing more than judges reading their own opinions into the Constitution.
In not stressing this point, Republicans erred. The problem isn’t Obama nominees per se, but non-originalists.
If Obama were to nominate a Scalia clone, Republicans should nominate that person as soon as possible. Admittedly, such a nomination has almost no chance of happening, but Obama nominees and non-originalists are still two distinct categories, even if in practice they will be the same.
Also, the issue isn’t that this is an election year. For one thing, the idea that the people as a whole vote for a president based on what judges he’ll nominate is absurd.
Secondly, even if they did, most people know next to nothing about constitutional interpretation. Popular support for a non-originalist would do nothing to make the theory more or less legally sound.
Even if a Supreme Court vacancy occurs in the president’s first year, senators still have the responsibility to ensure that only people who will interpret the Constitution in a proper way get appointed.
There is no constitutional requirement for having nine justices. Most decisions aren’t even 5–4 decisions. Any ties will simply be held over until next term or have a lower court ruling stay in effect.
The Supreme Court can last with a vacancy for the foreseeable future. A vacancy is certainly better than another justice who would read his or her own personal values into the Constitution for the next thirty years.