President Obama is shamelessly trying to hide behind a phony strict constructionist argument to pressure the Republican majority in the Senate into acting quickly when he nominates someone to succeed Justice Antonin Scalia. “The Constitution is pretty clear about what is supposed to happen now,” he declared during his press conference on February 16th. “When there is a vacancy on the Supreme Court, the President of the United States is to nominate someone” and the Senate must “either disapprove of that nominee or that nominee is elevated to the Supreme Court.” Acting like a bemused constitutional law professor lecturing a group of unenlightened students, Obama said: “I’m amused when I hear people who claim to be strict interpreters of the Constitution suddenly reading into it a whole series of provisions that are not there.”
President Obama is right only about his own role in nominating a successor to Justice Scalia under Article II, Section 2 of the Constitution. He is dead wrong, however, about the Senate’s role in completing the appointment process. The Senate does not have to actually veto the president’s nomination with an up-or-down vote in order to prevent the president’s nominee from being “elevated to the Supreme Court.” As part of the co-equal legislative branch of the federal government, the Senate – not the president – gets to decide the rules under which it can exercise its “advice and consent” power in responding to the president’s nomination.
Not only is President Obama wrong as a matter of constitutional law. His hypocrisy is staggering. He is now expressing concern with “how obstructionist the Senate has become when it comes to nominations.” That did not seem to bother Obama, however, when he was in the Senate and participated in a failed 2006 filibuster to block Republican Supreme Court nominee Samuel Alito. Ten years later, to avoid embarrassment over his inconsistent positions, the White House is saying that Obama now “regrets” his filibuster.
Even worse than President Obama’s hypocrisy is his cynicism. He will do anything he deems necessary to change the balance of the Supreme Court in a liberal direction. Obama dishonors Justice Scalia’s memory when he pretends to remain faithful to the “advice and consent” text of the Constitution, while twisting its meaning into something that the Founding Fathers did not intend.
In fact, Justice Scalia was very concerned with preserving the Senate’s independent role in the appointment process as envisioned by the Founding Fathers. He applied his mode of originalist strict construction of the text of the Constitution in many cases, including a case involving President Obama’s recess appointments. He concurred with the Supreme Court’s decision to invalidate a series of Obama recess appointments as an unconstitutional encroachment on the Senate’s authority. However, Justice Scalia disagreed with the majority’s reasoning and wrote his own concurring opinion. Although agreeing with the outcome in this particular case, Justice Scalia was worried that the majority’s willingness to defer to relatively recent customary practices of the executive and legislative branches in more ambiguous circumstances could have the effect in the future of “nullifying the Senate’s role in the appointment process.” He preferred instead to defer to “the plain, original meaning of the constitutional text.” He expressed concern with the potential “damage done to our separation-of-powers jurisprudence more generally” if “a textually grounded principle” were set aside in favor of a “freewheeling interpretation.”
President Obama is so intent on replacing Justice Scalia during the waning days of his presidency that he is willing to undermine the Constitution’s careful balance of separation of powers in the appointment process that Justice Scalia was committed to preserving. Obama is trying to shame the Senate into acting upon his nomination with his “freewheeling interpretation” of the advice and consent clause. Yet there is nothing in the text of Article II, Section 2 of the Constitution to require the Senate to take any action at all if it chooses not to. In fact, Obama’s formulation of the Senate’s role in the judicial appointment process after he submits a nominee for its consideration – the Senate must “either disapprove of that nominee or that nominee is elevated to the Supreme Court” – was expressly rejected by the Founding Fathers.
The Founding Fathers considered and voted against an approach that would have elevated the president’s nominee to the Supreme Court unless the Senate vetoed the nominee by a majority vote. After much deliberation, they decided instead on a process that left it up to the president to put forward his preferred choice for Supreme Court justice, but left it up to the Senate to dispose of that nomination in any way it saw fit. By taking no action at all, the Senate would thereby be withholding its consent and the appointment process would not be completed.
Republicans became the majority party in the Senate as a result of the 2014 elections. As President Obama is fond of declaring, elections have consequences. It is fair to say that the members of the Republican Senate majority and many of the voters who elected them would prefer a strict constructionist in the mold of Justice Scalia to replace him. Supreme Court justices are appointed for life. The Republican Senate majority is loath to consider a nominee by a liberal president in his last year in office, whom by a single vote could fundamentally transform the Supreme Court for many years beyond Obama’s presidency.
Since President Obama is almost certainly not about to nominate a candidate who would preserve the status quo, he should not be surprised if the Senate majority decides not to waste any time considering his choice. Even a seemingly centrist candidate such as Srikanth Srinivasan, who President Obama nominated to fill a seat on the United States Court of Appeals for the District of Columbia Circuit and was approved unanimously by the Senate, is too risky. For example, before he became a judge Srikanth Srinivasan wrote an article criticizing an Indiana law requiring voter photo identification. The Supreme Court found the Indian law to be constitutional. Justice Scalia voted with the majority. As an appellate judge, Srikanth Srinivasan wrote one opinion which upheld very broad regulatory discretion in interpreting a labor statute. He wrote another opinion giving standing in court to environmental and other groups that objected to the use of private property by its owners on the grounds that the groups “possess interests in observing the landscape from surrounding areas.”
Senate Republicans do not want another Supreme Court Justice like the ultra-liberal William Brennan, whom President Dwight Eisenhower chose during a presidential election year and later called one of his biggest mistakes.
Democrats love to point to Justice Anthony Kennedy, whom President Reagan nominated in 1987 to fill the vacancy created by the retirement of Justice Louis Powell and the Senate confirmed during the presidential election year of 1988. However, aside from the fact that the nomination occurred in the year prior to the election year, the Democratic majority in the Senate only went along with the Kennedy nomination after having first rejected both Robert Bork and Douglas Ginsburg as Justice Powell’s replacement. Obama is seeking to nominate his candidate to replace Justice Scalia during the presidential election year and, unlike President Reagan, his prior two nominations for the Supreme Court were approved without a problem.
Democrats would do well to consider the fact that appointments to the Supreme Court during a presidential election year do not always work out so well. Chief Justice Roger Brooke Taney, best known for delivering the infamous majority pro-slavery opinion in Dred Scott v. Sandford, was confirmed as Chief Justice on March 15, 1836 – during a presidential election year.
For now, President Obama has indicated that he will follow the regular process for nominating Justice Scalia’s replacement. However, he has not completely ruled out a recess appointment down the road if he gets nowhere with the Senate. That may set off a constitutional crisis of its own, especially after the Supreme Court’s invalidation of his prior recess appointments. In addition, Republicans need to consider a potentially troublesome scenario that they may not be able to challenge. Suppose that the Democrats win back control of the Senate and the Republicans win the presidency. The newly elected Democratic Senate majority could immediately abolish the filibuster for Supreme Court nominations, as they had done previously for lower court nominations. Then they could ram through Obama’s nominee by majority vote between January 3, 2017, when the new congressional session begins, and January 20th, when the new president takes office. There is little that the Republicans – then in the Senate minority – could do to stop them.
Elections do indeed have consequences. We should not put anything past Barack Obama and his Senate Democrat allies. That is why this election year is so important for Congress, the presidency and the Supreme Court.