Law & the Courts

The Senate Is Justified in Waiting to Confirm a Supreme Court Nominee

(Peter Spirer/Dreamstime)

Each day, partisan rancor grows as the struggle over the Supreme Court devolves into a political melee. Despite intensifying protests from the Left, Senate Republicans are holding firm in their resolve to consider a nominee after the presidential election season has ended.

The logic of this stance is simple: Holding hearings now would poison an already contentious confirmation process with the worst of election-year politics. For the good of the nominee and to help preserve the integrity of the Court, the Senate should consider a nomination after the presidential election. By so doing, we can also give the American people a voice in the direction of our nation’s highest court.

These are all sound reasons for waiting to confirm a nominee. But too often lost in the political squabble over the Supreme Court is discussion of the most important principle undergirding the Senate Republican position — a commitment to upholding the separation of powers.

The separation of executive, legislative, and judicial powers is critical to our constitutional system of government. Knowing all too well the abuses of monarchical rule, the Founders were wary of concentrating the powers of government in the same hands — something James Madison called “the very definition of tyranny.” Drawing from Montesquieu, they concluded that the American people would be best served by a Constitution that divides executive, judicial, and legislative authority among three individual branches of government. To maintain a balance of power across these three branches, the Framers developed a system of checks and balances in which “ambition . . . counteract[s] ambition.” This system has served the cause of liberty for more than 225 years. But today, it has reached a breaking point.

Today, the very separation of federal powers is threatened like never before. As the courts and the executive have assumed outsized roles in our constitutional system, Congress grows weaker and the walls of separation between branches of government are beginning to crumble. Understanding this dynamic is essential to understanding the Senate’s decision to consider a Supreme Court nominee after the people have spoken at the 2016 ballot box.

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Over the last few decades, both the executive and the judiciary have encroached on the powers of Congress. As a case in point, consider the various ways in which President Obama has attempted to arrogate legislative power to himself. From immigration and healthcare to job-killing environmental regulations and gun control, he has repeatedly taken executive action to bypass Congress and effectively enact policies of his own making. In direct opposition to the binding authority of the Constitution, the president has audaciously declared that “when Congress won’t act, I will.” This proclivity to unilateralism subverts the separation of powers.

Ideally, the judiciary would rein in the president’s executive overreach to safeguard liberty and to uphold the rightful prerogatives of the legislative branch. But President Obama has so effectively stacked the courts with liberal judges that few stand to rein in his executive excesses.

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What’s worse, judicial activism has become commonplace throughout the federal courts. This dangerous practice undermines the separation of powers one court decision at a time and is fundamentally at odds with our Constitution. Activist judges issue rulings based on personal political beliefs rather than existing law. The object of their decisions is not to say what the law is but what they think the law should be. In doing so, they do not merely interpret law; they also create it. As a result, the judiciary has become its own quasi-legislative body composed of unelected judges that claim authority to decide for all Americans the most fundamental questions of society.

Contrast the current state of our judiciary with the role the Founders envisioned for the courts. In Federalist 78, Alexander Hamilton wrote that the judiciary would be the weakest branch, equipped with “neither force nor will, but merely judgment.” He described it as the branch that would be “the least dangerous to the political rights of the Constitution.”

#share#Sadly, today’s judiciary is, in many respects, the antithesis of the one the Framers designed. The branch that was supposed to be the “least dangerous” has arguably become the greatest threat to our democracy. The branch that was to possess “neither force nor will,” is now armed with activist judges who essentially force their will on millions of Americans. With a single ruling, these black-robed philosopher-kings can issue unalterable decrees on the definition of marriage, the sanctity of life, and the role of religion in public discourse. Not even the Founders in all their prescient wisdom could have foreseen the leviathan the judicial branch has become.

This is where Congress finds itself today — squeezed between two branches of government that have far exceeded constitutional bounds to subsume legislative powers over time. The presidency has repeatedly infringed on legislative-branch authorities via unlawful executive actions and regulatory overreach. The courts have done much the same via judicial activism. The upshot of this abuse is a weakening of the separation of powers.

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What, then, is Congress to do in this situation? If both the executive and the judiciary are guilty — if not complicit — in usurping legislative authority, where can Congress turn to protect itself from further intrusion? In short, what can lawmakers do to reaffirm the separation of powers?

One answer: We can energetically exercise the advice-and-consent power found in Article Two, Section Two of the Constitution.

This constitutional prerogative is unique among checks and balances because it works in two directions — it restrains both the executive and the judiciary. The power of advice and consent limits the executive by requiring the president to work with the Senate to appoint judges. It likewise restrains the judiciary by giving the Senate a voice in the composition of our federal courts.

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The Senate’s decision to wait until after the election to consider a Supreme Court nominee is indeed a robust display of the advice-and-consent power. But just as bold is the seizure of de facto legislative authority by the executive and the judiciary. And unlike the assertive exercise of the Senate’s advice-and-consent power, executive overreach and judicial activism displace the checks and balances essential to the liberty of the people.

Such a dire situation merits significant action — including action by Congress to check executive and judicial activities to deter further encroachment on legislative power.

#related#That is why I support the Senate’s decision to hold the Supreme Court confirmation process after the presidential election. Doing so not only provides the American people a voice in the direction of our nation’s highest court; perhaps even more importantly, it reaffirms the separation of powers by resisting encroachments from the executive and the judiciary and by reasserting Congress’s rightful role as the most direct representatives of the people in our system of government.

By vigorously exercising its advice-and-consent role, the Senate is sending a critical message to the executive and the judiciary. The message could not be more clear: If the president and the courts continue to violate the separation of powers at the expense of the people and their liberties, the Senate can exercise its advice-and-consent role to fight back.

For the good of our republic, I hope they hear this message loud and clear.

— Orrin Hatch is the senior U.S. senator from Utah. He is the longest-serving current member and a former chairman of the Senate Judiciary Committee.

Orrin Hatch is the senior member and former chairman of the Senate Judiciary Committee.

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