In Article II, section 2, the Constitution of the United States provides that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the Supreme Court ...." The Advice part has not been followed much by either branch throughout our history. Let's give it another shot. I recommend that the Senate pass the following resolution:
The people saying that no nominee should be considered are likely relying on the premise that there is no possibility whatever that this President would nominate such a person, and they are probably right.
Pursuant to Article II, section 2 of the Constitution, the Senate of the United States hereby advises the President to nominate as the successor to the late Justice Antonin Scalia a qualified person with a demonstrated record of support for and commitment to the separation of powers established by the Constitution, particularly with regard to the power to change the Constitution as expressed by Justice Hugo Black in his concurring opinion in McGautha v. California. "Although some people have urged that this Court should amend the Constitution by interpretation to keep it abreast of modern ideas, I have never believed that lifetime judges in our system have any such legislative power."If the President would take that advice, I expect that Republican opposition to his filling the seat would evaporate.
The people saying that no nominee should be considered are likely relying on the premise that there is no possibility whatever that this President would nominate such a person, and they are probably right.
We can figure out the kind of nominee we'll get now by looking at the two past ones, Justices Sotomayor and Kagan. Each has her own virtues and appeal. But neither is close to being a constitutionalist in the Scalia mold, and the President would not have nominated them if they were.
Here's the main point: A liberal agenda to the extent the President wants implemented simply is not going to get enacted by this Congress. Thus, resort must be had to alternative, less democratic (small "d") means.
One of them is executive orders. Another is agency regulations. A third is court decrees.
A strict constitutionalist court is far less likely to issue or ratify such decrees than a court with a more "living Constitution" judges. The President is therefore all but certain to nominate such a "living Constitution" person, as has been his wont.
Republicans ran (and won the Senate in 2014) on a less expansive (though still too large for my tastes) view of government. Having taken over the Senate on that platform, they are entitled to implement it by declining, in any constitutionally permissible form, to consent to the President's nominee.
Which is what is going to happen. I have $500 that says so. Specifically, my bet is that no nominee gets a floor vote until after the electorate has chosen a new President this November.
Any takers?