Bill noted yesterday the sudden death of Justice Antonin Scalia. His passing is a great loss to the country and the Constitution.
The Great Question of constitutional law is not hard to state. Is the Constitution a contract between the people and their government, with the power to change its terms reserved to the people, or is it an empty vessel for five unelected, unaccountable justices to pour their policy preferences into?
Legitimate judicial review is to prevent the legislature from crossing a line that the people wrote into the Constitution. Illegitimate judicial review is creating lines that the people did not write into the Constitution, striking down laws enacted by the people's representatives or by the people themselves on a pretense that they violate the Constitution but actually just because the judges disagree with the people -- "substitute their own pleasure to the constitutional intentions of the legislature," as Hamilton put it in Federalist No. 78.
There are two primary dangers in appointing Justices to the Supreme Court: appointing people with views on the wrong side of the Great Question and appointing people who have not thought much about it at all.
The Great Question of constitutional law is not hard to state. Is the Constitution a contract between the people and their government, with the power to change its terms reserved to the people, or is it an empty vessel for five unelected, unaccountable justices to pour their policy preferences into?
Legitimate judicial review is to prevent the legislature from crossing a line that the people wrote into the Constitution. Illegitimate judicial review is creating lines that the people did not write into the Constitution, striking down laws enacted by the people's representatives or by the people themselves on a pretense that they violate the Constitution but actually just because the judges disagree with the people -- "substitute their own pleasure to the constitutional intentions of the legislature," as Hamilton put it in Federalist No. 78.
There are two primary dangers in appointing Justices to the Supreme Court: appointing people with views on the wrong side of the Great Question and appointing people who have not thought much about it at all.
A correct view on the Great Question does not, of course, predetermine answers to all constitutional questions. People who agree on what the question is can sometimes differ on the answer. For example, as much as I respect and admire the late Justice Scalia, I think his view on the original understanding of the Confrontation Clause is considerably off course, as explained in my brief in Ohio v. Clark. But at least when people disagree over the original understanding, they agree on what question needs to be asked, and they agree on a framework that places some definable limits on the power of the judiciary to run roughshod over democracy.
So long as we have a Democrat in the White House, the President will likely view the law as merely politics by other means and nominate persons with wrong views on the Great Question. That is why changing the party in the White House in this year's election is a necessary but not sufficient condition to protect the Constitution from judicial activism.
Republican Presidents have committed some massive failures in Supreme Court appointments. President Eisenhower appointed Chief Justice Warren and Justice Brennan for political reasons, and he came to regard these appointments as mistakes. Whether he actually said "biggest damned fool mistake I ever made" or not, that's pretty much how he regarded the matter. Brennan was the greater mistake in my view, and by a wide margin, but Ike did not live to see just how much greater.
President Nixon set out to move the Court in the direction of "strict construction," as it was then known. He made considerable progress in that direction, but a hostile Senate limited his choices.
President Ford gave no indication that he knew or cared about the matter. To the end of his days, he regarded his lone appointment of Justice Stevens as a good one, a view not widely shared on the conservative side of the aisle. Justice Stevens himself timed his retirement so that President Obama and not President George W. Bush would appoint his successor, which says a lot.
President Reagan's record on appointments was much like President Nixon's. He considered the Great Question vitally important and sought to move the Court in the right direction. His elevation of Justice Rehnquist to Chief and his nomination of Justice Scalia were important steps. Loss of control of the Senate presented a great obstacle, though, and the Bork debacle was a setback.
Fate dropped two golden opportunities into the lap of President George H. W. Bush. He bungled the first one badly. Justices Brennan and Marshall (the two furthest removed from the correct view of the Great Question in post-World War II American history) were both forced by ill health to retire during his term. When he nominated David Souter, I researched his opinions and found very little that would tell me anything of his views on the matter, and there were no extrajudicial writings of note. President Bush's excessive reliance on former New Hampshire Governor John Sununu's recommendation and Sununu's naive reliance on Senator Warren Rudman produced this debacle. Like Stevens, Souter timed his retirement to allow President Obama to nominate his successor.
President Bush hit it out of the park on his second opportunity. His nomination of Clarence Thomas to succeed Thurgood Marshall produced the most significant change in the Court with a single appointment in postwar history, and in the right direction.
With his father's record looming over him, one might think that President George W. Bush would take the greatest care to emulate his success and avoid his mistake. Not entirely. He did take care when he nominated John Roberts, who was well known. When he nominated Harriet Miers, I did not know where she stood on the Great Question. After reading every article she had ever written, I still did not know. I had a deep, unsettling feeling that she had never thought about it at all. Fortunately, a revolt in the President's own party scuttled the nomination, and he hit another home run with the nomination of Samuel Alito.
That brings us to the present. Until yesterday, we had a Supreme Court divided pretty much down the middle, with Justice Kennedy's vote largely determining the hot-button questions, sometimes to the outrage of liberals and sometimes to the outrage of conservatives. Original understanding is sometimes invoked as the basis of constitutional law, as in the Confrontation Clause cases, and sometimes ignored, as in Fourth Amendment exclusionary rule cases. (In the latter, it is crystal clear that fidelity to the original understanding would require overruling Mapp v. Ohio, as explained in my brief in Utah v. Strieff.)
Should Senate Republicans prevent President Obama from appointing a successor to Justice Scalia in his final year as President? Absolutely. An outright majority of justices who do not respect the exclusive authority of the people to change the terms of their contract and who favor left-wing political ends could be a constitutional catastrophe. There really is no limit to what they might read into the Constitution. This is a pivotal moment in constitutional history when drastic measures are justified.
Might we go a full year, plus a few extra months, with an 8-member Supreme Court? That would not be so bad, really. Cases that would have been decided 5-4 with Justice Scalia in the majority would instead be decided with a one-line order that lets the lower court decision stand and sets no national precedent. If a new justice is confirmed in late spring 2017, those cases could just be decided at the end of the term. What if they have to hold a special argument session in a muggy Washington summer? Life is rough all over.
And what if the next President is Hillary Clinton or Bernie Sanders? Then God help us.
So long as we have a Democrat in the White House, the President will likely view the law as merely politics by other means and nominate persons with wrong views on the Great Question. That is why changing the party in the White House in this year's election is a necessary but not sufficient condition to protect the Constitution from judicial activism.
Republican Presidents have committed some massive failures in Supreme Court appointments. President Eisenhower appointed Chief Justice Warren and Justice Brennan for political reasons, and he came to regard these appointments as mistakes. Whether he actually said "biggest damned fool mistake I ever made" or not, that's pretty much how he regarded the matter. Brennan was the greater mistake in my view, and by a wide margin, but Ike did not live to see just how much greater.
President Nixon set out to move the Court in the direction of "strict construction," as it was then known. He made considerable progress in that direction, but a hostile Senate limited his choices.
President Ford gave no indication that he knew or cared about the matter. To the end of his days, he regarded his lone appointment of Justice Stevens as a good one, a view not widely shared on the conservative side of the aisle. Justice Stevens himself timed his retirement so that President Obama and not President George W. Bush would appoint his successor, which says a lot.
President Reagan's record on appointments was much like President Nixon's. He considered the Great Question vitally important and sought to move the Court in the right direction. His elevation of Justice Rehnquist to Chief and his nomination of Justice Scalia were important steps. Loss of control of the Senate presented a great obstacle, though, and the Bork debacle was a setback.
Fate dropped two golden opportunities into the lap of President George H. W. Bush. He bungled the first one badly. Justices Brennan and Marshall (the two furthest removed from the correct view of the Great Question in post-World War II American history) were both forced by ill health to retire during his term. When he nominated David Souter, I researched his opinions and found very little that would tell me anything of his views on the matter, and there were no extrajudicial writings of note. President Bush's excessive reliance on former New Hampshire Governor John Sununu's recommendation and Sununu's naive reliance on Senator Warren Rudman produced this debacle. Like Stevens, Souter timed his retirement to allow President Obama to nominate his successor.
President Bush hit it out of the park on his second opportunity. His nomination of Clarence Thomas to succeed Thurgood Marshall produced the most significant change in the Court with a single appointment in postwar history, and in the right direction.
With his father's record looming over him, one might think that President George W. Bush would take the greatest care to emulate his success and avoid his mistake. Not entirely. He did take care when he nominated John Roberts, who was well known. When he nominated Harriet Miers, I did not know where she stood on the Great Question. After reading every article she had ever written, I still did not know. I had a deep, unsettling feeling that she had never thought about it at all. Fortunately, a revolt in the President's own party scuttled the nomination, and he hit another home run with the nomination of Samuel Alito.
That brings us to the present. Until yesterday, we had a Supreme Court divided pretty much down the middle, with Justice Kennedy's vote largely determining the hot-button questions, sometimes to the outrage of liberals and sometimes to the outrage of conservatives. Original understanding is sometimes invoked as the basis of constitutional law, as in the Confrontation Clause cases, and sometimes ignored, as in Fourth Amendment exclusionary rule cases. (In the latter, it is crystal clear that fidelity to the original understanding would require overruling Mapp v. Ohio, as explained in my brief in Utah v. Strieff.)
Should Senate Republicans prevent President Obama from appointing a successor to Justice Scalia in his final year as President? Absolutely. An outright majority of justices who do not respect the exclusive authority of the people to change the terms of their contract and who favor left-wing political ends could be a constitutional catastrophe. There really is no limit to what they might read into the Constitution. This is a pivotal moment in constitutional history when drastic measures are justified.
Might we go a full year, plus a few extra months, with an 8-member Supreme Court? That would not be so bad, really. Cases that would have been decided 5-4 with Justice Scalia in the majority would instead be decided with a one-line order that lets the lower court decision stand and sets no national precedent. If a new justice is confirmed in late spring 2017, those cases could just be decided at the end of the term. What if they have to hold a special argument session in a muggy Washington summer? Life is rough all over.
And what if the next President is Hillary Clinton or Bernie Sanders? Then God help us.
Why should Senate Republicans prevent President Obama from appointing a successor to Justice Scalia, regardless of the nominee's qualifications and established views on the Great Question?
Because it is not remotely possible that Obama will appoint anyone who will not give the Left, and Constitution-free government, a majority on a host of important questions.
I don't necessarily disagree. But why not give whoever he appoints an up-or-down vote?
Because each side is going to work this for the politics of it. Obama already knows he's not getting anyone through, so his nomination will be geared simply to exact a political cost on Republicans (for example, by putting up a minority female, even if her intellect pales beside Scalia's).
The best way for Republicans to minimize that cost is simply to do nothing, which under the Constitution they are fully entitled to do. The Constitution requires affirmative consent. As Scalia himself would note, it says nothing about how consent is to be given -- or withheld.
How do you see this playing out if Obama nominates Srinivasan -- Mr. 97-0?
Who would benefit politically if the GOP-controlled Senate doesn't permit an up-or-down vote on Srinivasan?
I believe that the GOP would have been better served by not jumping the gun and stating that no nominee of lame-duck Obama will be evaluated in a presidential election year.
I believe McConnell, Cruz, Rubio et al. should have remained silent until such time that Obama announced his nominee.
IMO, the GOP hurt itself politically among moderate, independent, voters (especially in crucial swing states) by its knee-jerk reaction.
Drilling down into the background and judicial phiolosophy of Srinivasan would, IMO, have been a better political (and legal) strategy.
Would your position change if Obama nominated Ted Olson?
Paul, my answer to your initial question is largely the same as Bill's. Sure, the President can announce his nominee. And if he does nominate someone genuinely committing to respecting the basic contract between the people and their government and who emphatically repudiates the "living document" nonsense, then yes, he should be confirmed.
I did not discuss that possibility in the original post because its probability is multiple digits to the right of the decimal point.
The vote on confirmation of someone to the Court of Appeals is irrelevant. The court of last resort is fundamentally different.
paul --
"I believe McConnell, Cruz, Rubio et al. should have remained silent until such time that Obama announced his nominee."
No doubt, Republicans seeking to replace Obama should accept censorship dictated by Obama's timing.
"IMO, the GOP hurt itself politically among moderate, independent, voters (especially in crucial swing states) by its knee-jerk reaction."
And your actual evidence for this is.....what?
Under what theory of constitutional law is the Senate obliged to confirm or even bring to the floor a judicial nomination?
No evidence, Bill. Time will tell.
Agreed. Senate not obligated to act. But, depending upon whom the nominee is, IMO it might be smart (politically) to act.
Legally, Kent, I agree the 97-0 vote is irrelevant. But that might not be the case politically-speaking.
paul --
Regardless of what is good politics, do you think the right thing for Republicans to do for the country is allow legislative momentum to build to replace the leader of the conservative wing with a liberal (even if not an extreme liberal), thus shifting the Court's majority, and with it the law, to the left for many years?
Is that the right thing for the country?
The right thing for the country?
1. Obama nominates; and
2. The Senate votes.
That's process. I'm not talking about process. I'm talking about substance, and you're avoiding it.
So I will ask again.
Substantively, is it the right thing for Republicans to allow legislative momentum to build to replace the leader of the conservative wing with a liberal, thus shifting the Court's majority, and with it the law, to the left for many years and on many important issues?
The "right" substantive result is reached only by following the "right" process: Nomination & Vote.
If the result is a shift to the left so be it. Although I seriously doubt that such a shift will happen.
First, the "right" process (I will follow you in using quotation marks) is neither necessary nor sufficient to get the right substantive result.
(This reminds me of the constant defense lawyer trick of using process to get the WRONG substantive result, i.e., the dumbing down of deserved punishment (or no punishment at all) for the thuggy client).
Second, as you have acknowledged, no part of the Constitution, and no statute, requires an up-or-down vote.
Third, the 54 Republicans who got elected to the Senate probably have a more educated idea of what is politically astute than you.
Fourth, it is not my position, and I don't understand it to be Kent's position, given his post here, that "If the result is a shift to the left so be it."
Indeed, with all respect, that is an astonishing thing to say. Are you ready to say goodbye to a significant part of free speech (Citizens United)? To a robust view of the Second Amendment (Heller)? To any reasonable application of the death penalty (Glossip)? Do you think these things are unimportant to a free and Constitutionally-ordered society?
The Court is hanging by a thread right now. It is not a matter of carefree indifference whether the thread is broken.
Fifth, why would you "seriously doubt that such a shift will happen" with an Obama appointee? The truth is that such a shift is CERTAIN to happen with an Obama appointee. Indeed it's likely to happen with a Republican appointee; Scalia was a once-in-a-lifetime conservative intellect.
It's become reasonably clear that you want an even more Constitution-free Court than we already have. I could not disagree more.
Bill,
Practically speaking, what do you believe is the downside of a Nomination-and-Vote process? How could that process lead to "an even more Constitution-free Court"?
P.S. I am not going to respond to each of your five points other than to say your penultimate sentence is not now (nor has it ever been) my desire.
No good result can come from Scalia's death. He was a once-in-a-lifetime conservative intellect devoted to the Constitution and the rule of law.
The only realistic question, then, is how we get to the least bad result in filling his seat.
There are two parts to the answer. The first is to refuse consent to anyone Obama nominates, because such a person is going to be a legal Leftist, either moderately or flagrantly, and either openly or by stealth. That's how it is, and if you don't understand that, or deny it, we have no place to go here.
The second is to wait for a different President to be elected and nominate someone other than a Leftist. There is about a 50% chance the new President will be Republican. If he is, the chances are good (not at all perfect, but good) that the nominee will not be a Leftist. He or she might even be quite good -- former Judge Mike Luttig, say.
The upshot is that the law and the Constitution are going to be in better shape if a different President makes the nomination. We should therefore reject this President's. In so doing, we should choose the least costly method of rejection, which is what Sen. McConnell and Sen. Grassley have done by saying they simply will not bring it the floor.
I totally agree with your assessment of Justice Scalia.
I would appreciate your assessment of Judge Srinivasan? Yes, he is no Scalia. But no one can fill Scalia's shoes.
Take a look at Srinivasan's testimony before the Senate Judiciary Committee. Pay particular attention to his answers to questions posed by Cruz and Grassley.
Do you believe he is a "legal Leftist"?
I know this sceanrio is hypothetical at this point. But since I, and many other so-called insiders and pundits, believe that he will be Obama's nominee your thoughts on Srinivasan would add an important perspective to the discussion.
The "ideology before law" block cannot be allowed to reach five.
Before anyone guffaws, note this. During most major cases, there is a ton of speculation as to how Roberts, Kennedy, etc. will vote. Scalia voted FOR flag burning.
Have you ever heard ANY speculation as to how Ginsberg, Sotomayor, Kagan, or Breyer will vote on highly political cases?
1. Do you know what the phrase "stealth nominee" means?
2. As Kent has pointed out, what's acceptable on the court of appeals is not acceptable on the Supreme Court.
3. Correct, no one is going to fill Scalia's shoes, but, with a Republican President, we can come much, much closer than with Srinivasan.
4. Furthermore, Srinivasan is not going to be the nominee, which you would know if you knew how Obama and his WH staff think. Srinivasan gives them less political leverage than they want and can get elsewhere, and leverage is what this fight is about.
5. Not that it makes any difference. No one is getting to the floor, period. The Republican majority simply does not share your "so be it" view that shifting a centrist Court to the Constitution-free left is OK. It is not OK.
paul--the 'rats have forfeited any claim on the idea that the GOP should vote on an Obama nomination.
They started all this nonsense with the Reagan and Bush judges--the GOP didn't play as hard with Clinton nominees (even though many of them were truly awful), and then the 'rats were even worse with Bush 43 nominees, with Obama leading the charge in Bush's second term? Nope.
federalist -- There are way too many rats ... on both sides of the aisle. Many factors contributed to this infestation.
I agree with you and Bill that there will be no hearing on any Obama nominee. The line in the sand has been drawn. And, in this presidential election year with so much at stake, that line will not be crossed.
So the fate of the Court will be in the hands of independent voters in a few counties in a few swing-states. I am not sure that's what the Framers would have wanted or envisioned.
That is EXACTLY what they envisioned. SCOTUS nominations were made intentionally "political."
TarlsQtr -- Is it crystal clear that they envisioned the Senate refusing to even consider (by holding a hearing) a president's nominee?
Did they envision the Senate majority leader (presumably speaking for the GOP-controlled Senate) stating that no Obama nominee would be considered, before Obama nominated someone?
Doesn't the Appointments Clause require a nomination before a refusal to consent?
I think it is an open question whether refusing to consent (to anyone) before anyone is nominated comports with what the Framers envisioned. (see www.heritage.org/research/reports/2005/07/advice-and-consent-what-the-constitution-says.)
McConnell et al. should have kept their mouths shut until Obama actually nominated someone.
Paul,
"The Framers expressly based the Constitution's "advice and consent" model on the approach used in Massachusetts, under the State's Constitution of 1780. And, looking through years of archived nomination files, I found myriad examples of nominations made by the governor that received no up-or-down vote from the "Privy Council," the body that provided constitutional advice and consent.
But the best evidence of the Senate's power not to vote on nominations is found in the Framers' rejection of an alternative approach to appointments. As an alternative to the "advice and consent" model, James Madison proposed a discretionary Senate veto. Under that plan, a president's nominees would automatically be appointed unless the Senate mustered a majority vote against that nomination within a fixed number of days.
In short, Madison would have put the burden on the Senate, to affirmatively act to block a nomination. But the Framers rejected his proposal, and chose instead the "advice and consent" model, placing the burden on the president (and his supporters) to convince the Senate to confirm his nominee."
And history reflects the Framers' choice. Presidents have made 160 nominations for the Supreme Court. The Senate confirmed only 124 of them. And of the 36 failed nominations, the vast majority of them (25) received no up-or-down vote."
http://www.weeklystandard.com/the-constitution-does-not-require-the-senate-to-vote-on-a-nomination/article/2001087
Anytime you want to teach my law class at Georgetown, come on down.
In all the years I've known you, I have yet to see anyone best you in an argument.
TarlsQtr,
Thanks for the link to the Weekly Standard article. Very informative. And somewhat consistent (but not entirely) with the Heritage research that I cited.
And, pivotally, I don't believe there is an example (during any era) of the Senate (acting through its majority leader) stating that it would refuse to consider any nominee before a nomination was even put forth.
The preemptive (and in my opinion mistaken) action by the GOP-controlled Senate violates the clear text of the Appointments Clause by putting the cart (i.e., the refusal to consent) before the horse (i.e., Obama's nomination).
The the conduct by McConnell et al. will never ripen into a justicable constitutional issue (because Obama will nominate and, thereafter, the Senate will refuse to consent (by refusing to hold a hearing)). But I believe it will have adverse political consequences among independent voters in critical swing-states. (No, Bill, I don't have "evidence" to support my opinion.) It plays right into the Dems narrative that the GOP is made up of obstructionists. (Not a narrative to which I subscribe. But a narrative that has some evidentiary support.)
In a belatedly approved comment, Melissa asks, "Would your position change if Obama nominated Ted Olson?"
In all likelihood, I would have a heart attack and join Justice Scalia in the Originalist Club of the Afterlife, so my position would be moot.
Melissa --
Let me refer to this recent thread: http://www.crimeandconsequences.com/crimblog/2016/02/the-black-lives-that-didnt-mat.html#comments
In that thread, you said that a NAAUSA member or members had signed off on the early release motion for Wendell Callahan, and thus bore a share of responsibility for his subsequent multiple murders. You also said that I omitted to mention this, impliedly accusing me of dishonesty by concealing a relevant fact about NAAUSA and its video about the Callahan case.
I asked you to name the NAAUSA member involved. You simply disappeared. That's because there isn't any, and I concealed nothing.
I would appreciate it if you would acknowledge that your accusations, though serious, were incorrect.
Kent --
At the last minute, the President changed his mind, and rejected nominating Ted Olson in favor of nominating you.
paul --
The job of the opposition is to oppose.
When opposition is simply for obstruction's sake, that's a bad thing.
When it is for an extremely important and worthwhile goal, like preventing the Supreme Court from shifting decisively to the left, that's a good thing.
A very good thing.
Paul,
Let me remind you of your original question:
"Why should Senate Republicans prevent President Obama from appointing a successor to Justice Scalia, regardless of the nominee's qualifications and established views on the Great Question?"
You later turned it to a question of what the founders would want.
As I believe I clearly showed, they would have been cool with it.
While you were previously arguing the legitimacy of the strategy, you are now arguing tactics. That's fine, but you should at least go back and acknowledge that the strategy of blocking the nomination is valid.
Nothing in the constitution says how the Senate must oppose a nomination. In fact, the FF's insistence on the burden being on the President strongly implies that doing nothing is perfectly fine.
Whether or not McConnell should have said anything is constitutionally irrelevant. It is a political matter, not a constitutional one. Yes, he may have opened the Republicans up to "obstructionist" charges, but he also made a clear and necessary statement to the conservatives who have every reason to distrust him.
Nor is it without precedent.