Why the Senate Should Not Confirm A Scalia Replacement

Antonin Scalia's death yesterday has thrown kerosene onto an already raging political fire associated with the ongoing Presidential nomination processes. Justice Scalia had barely begun repose before opinions began to fly about his replacement and or whether the Republican Senate would advance an Obama nomination.  I am of the opinion that both branches of government involved in this process should do their jobs. And by that, I mean the President should nominate a replacement when he has arrived at a suitable choice, and then the Senate should take up the nomination and consider it. That consideration certainly does not mean that Obama's choice should be confirmed. Nor does it mean that Obama's choice should even get a vote. It means that the Senate should do its job and consider the nomination.

There is all manner of discussion on the web about precedent for and against nominating and confirming. I urge you to read these discussions and reach your own decisions on whether they bear on the questions at hand. I personally give little weight to them, as I--like Scalia--am a bit of an originalist when it comes to the Constitution, and so it is here that I will look for my cues. So let us have a look at Article II, Section 2 Clause 2 of the Constitution of the United States of America:

"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: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

There are at least two important aspects to this clause. The first is that the clause specifically cites the process for replacing Supreme Court "judges"--in that the President "shall" nominate and "by and with the Advice and Consent of the Senate" they will be placed in office.  The second important aspect of this clause is that the framers clearly understood that there would be inferior "Officers" "as they think proper" that the President, the Courts of Law, or the Heads of Departments can appoint without Senate approval.

Why would they do this? They did this because they recognized that there was a matter of relative importance between and among the various officials that would be appointed by a President, and they placed Supreme Court vacancies in the category that created the highest burden, one of nomination AND confirmation.  I cite this as a method of indicating my sense that the framers considered these nominations to be of utmost importance.

Additionally, keep in mind that the framers chose that the "advice and consent" duty be assigned to the Senate, not the House. They saw the Senate as a place of deliberation, where the passions of the people as expressed in their representatives in the House would be cooled. The relative size of the bodies is immaterial in this choice; what was important was their view that the Senate (which was then made up of people appointed by the legislatures of the several states) would act in a manner so as to tamp down political passion in the hopes that better governance would result.

And so we find ourselves today with yet another example of the genius of our Founding Fathers. We are in the midst of a particularly passionate Presidential election, in which both parties are split and insurgent forces within each are threatening to bring forward candidates who dramatically challenge the status quo. Into this volatile mix enters the death of the single most important conservative jurist in our nation's history, with the responsibility of his replacement's nomination belonging to a decidedly non-conservative President. Additionally, 18 months ago, the American people dealt that President's power and authority a stunning blow by turning over control of the Senate to the nation's conservative leaning party. The court that the replacement will join is one that has been involved in ever-increasing political turmoil in the recent past.

If ever there were a time for the cooling, deliberate, consideration of the Senate, this is it. Clearly the Framers believed Supreme Court Nominees to be important enough for Congressional review. Clearly the Framers believed that Congressional review would be best accomplished in its more deliberative body, the Senate. And clearly--and this must not be forgotten--the Framers did not understand that review to be a rubber stamp--especially where explosive political issues are at stake.

A liberal President nominating to fill the vacancy of a conservative justice in the midst of an increasingly harsh political dynamic associated with a Presidential election--wherein the balance of the court that has existed to this point would be dramatically upended AS A POLITICAL MATTER--rises to the occasion of the kind of situation that calls for the deliberate political branch to exert its power and authority. And by this, I mean that if it as a body, believes that it is better to give the President's nominee a hearing and confirm this person, it should do that. If it believes that it is better to give the President's nominee a hearing and decline it, it should do that. And if it believes that it is better not to give the President's nominee a hearing at all, it should do that.

My guess is that the governing party in the Senate will not give the President's nominee a hearing, and that is ok. Additionally, if the President wishes to make a "recess appointment" to the Supreme Court--a highly controversial measure in and of itself--I would have no issue with this. Such a nominee would serve for a year and then would be replaced by a nominee of the next President.

We can spend all our time relitigating the past where judicial nominees of both parties were held up for extended periods of time in the Senate. Or we can relitigate instances in our history where circumstances resembling what we have today arise. In neither case will one be satisfied, because there are sins enough on both sides for which to be accounted.

Or we can do as I suggest...let the process play out as our Framers intended. What they did not intend was rubber stamping in the name of political expedience.