Bench Memos

The Silly Resort to “What Would Scalia Do?”

Today’s Washington Post carries two pieces on the same page—Kathleen Parker in her regular column, and a brief op-ed by Ezekiel Emanuel—making virtually identical arguments of a kind that is tiresome already, though I expect it to be endlessly repeated.  The form of the argument goes something like this:

  • Major premise: Justice Antonin Scalia was a textualist and an originalist. 
  • Minor premise: The text of the Constitution indicates that the Senate is obligated to vote on a president’s nominee for the Supreme Court, and a true originalist would not politicize this process. 
  • Conclusion: Therefore the Senate Republicans who want to block Obama’s appointment, perhaps with no vote at all, are hypocritical traitors to Scalia’s jurisprudence, which they claim to admire.

This syllogism has everything going for it as a logical matter, but it has an entirely false minor premise, and thus a false conclusion.  The president is entitled to do whatever he can do under the Constitution.  He is not obliged even to make a nomination.  (To those who observe that the appointments clause appears to have the imperative “shall nominate,” we would reply that President Obama, like many other presidents, has neglected to make nominations for some offices for a considerable length of time, including judicial posts on lower courts—and this clause covers all his appointments, not just those to the Supreme Court.  No one thinks he is violating his oath by inaction.)

By the same token, the Senate is entitled to do whatever it can do under the Constitution.  It likewise is not obliged to do anything about a nomination it receives.  The Senate’s power of advice and consent can be exercised in multiple ways, including by simple inaction.  And under the heading of “doing something,” how about that much neglected word “advice”?  It would be perfectly in keeping with the text of the Constitution if the Senate responded to a presidential nomination by neither confirming nor rejecting it, but by instead passing a resolution saying, in effect, “This isn’t what we had in mind at all.  Let us give you a little advice. . . .”  As for explicit consideration, what form need it take?  No committee hearings on a Supreme Court nomination were ever held before 1916.  And as I noted yesterday, we have examples of Senate inaction, death-by-postponement, and withdrawal of nominations prior to a vote sprinkled throughout our history.

As for the part of the minor premise suggesting that politicizing Supreme Court nominations is a no-no, this will not survive the first brush with history, nor can it be attributed to the thought of the founders.  They made judges appointed rather than elected officials in order to secure the selection of well-qualified judges; they gave them permanent tenure (subject to impeachment) in order to shield law from politics.  But no branch was intended to be cut off from the system of checks and balances, and the framers would be the last ones surprised that constitutional politics entered into the employment of those checks and balances.  After all, they started the practice.  As Henry Adams wrote of the lame-duck appointments of John Marshall and other Federalists to the bench just before Jefferson’s Republicans took office in 1801, “the Federalists felt bound to exclude Republicans from the bench, to prevent the overthrow of those legal principles in which, they believed, national safety dwelt.”

Ezekiel Emanuel cites this historic episode as though it supports a demand that today’s Senate act on an Obama nomination.  But it suggests the opposite.  The Adams administration and its Federalist supporters controlling Congress in the first two months of 1801 had their opportunities, and they took them.  Emanuel writes that Jefferson “was respectful of the fact that the Constitution gave the president and Senate authority to nominate and confirm justices while in office.  He never tried to oust Marshall, despite complaining bitterly about ‘twistifications’ in Marshall’s many landmark decisions.” 

Respectful?  I should think “resigned” would describe Jefferson better.  When the vacancies were available, a president just defeated in the election filled them because he could, and had a friendly Senate ready to confirm them.  If Jefferson’s party had already controlled the Senate, he and they would have blocked any Adams nominations without any compunction, and would have violated no principle by doing so.  As for “never tr[ying] to oust Marshall,” there is ample evidence that Jefferson would have relished the opportunity, and many scholars have concluded that the failed impeachment of Samuel Chase was a warm-up for an attack on Marshall as well.  I’m glad Marshall was appointed, glad Jefferson was frustrated, and glad that Marshall outlasted his cousin and nemesis.  But let’s not pretend that something terribly high-minded was going on in 1801.

The appointment of Supreme Court justices is inescapably, naturally, and rightly political.  When the Court has itself become the captive of anti-constitutional theories of politicized judging, as it largely has today, the stakes are very high for the constitutional party—an imperfect but fair description of the Republicans—to prevent the Court from still further politicization.  Only politics outside the Court can ever defeat the infection of politics inside it.  And there’s obviously nothing contrary to the Constitution’s text, principles or original meaning in the employment of any stratagem the text makes possible.  Justice Scalia would understand perfectly.

 

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