With the death of United States Supreme Court Associate
Justice Antonin Scalia, a debate has begun on whether or not to confirm anyone
nominated to fill the vacancy on the Court by President Barack Obama or let the
next President make the nomination. The
Senate should consider his nomination, but make it clear that it would only
confirm someone who reveres the Constitution and its principles of federalism
and the Separation of Powers and understands the constitutional role of a judge
is to interpret the law and not make the law.
Some conservative
Republican Senators and other conservative elected officials and political
commentators have suggested that with less than one year left in his term, the Republican-majority
Senate ought not to confirm the liberal Democratic President’s nomination that
would likely alter the balance of power on the highest federal court in favor
of the liberals, as many of the most significant recent decisions have been
decided by a 5-4 margin. Some of them
even dismiss the Obama as a “lame duck,” even though he was re-elected; a lame duck is one who is defeated for
re-election. The concern of these
Senators and others is valid, as Obama has appointed judges, including to the
Supreme Court, who do not revere the Constitution or respect its principles of
federalism and the Separation of Powers, but instead make law by interpreting
the Constitution and statues as they wish.
Furthermore, Obama has demonstrated extraordinary contempt for the
Constitution, as several of his actions or laws he has signed the Court has
found to have violated the Constitution, as recently again as last week. However, the Senate should proceed with
caution in establishing any precedent, as the situation could be the reverse
some day and there are legal, constitutional and political concerns to consider,
as well as an opportunity to force Obama to make a good nomination.
A vacancy
on the Supreme Court necessarily creates an extra burden for the remaining
Justices, as they are each assigned an appeals court circuit to oversee and
there is also a division of labor in writing opinions. Even with a full bench, the Court only hears
less than one percent of the cases appealed to it. Indeed, it is time to consider increasing the
membership of the Court to 11 or 13 by the next presidency. What is more significant is that any
decisions in which the Court is split 4-4, in which case the appellate court
rulings would stand, would not be as regarded as authoritative, as they would
leave the law unsettled. The American
people would not have confidence that such rulings would not be different once
the balance is tipped by the next appointee, one way or another. Furthermore, there would continue to be a lack
of clarity in the law in those instances when there are contradictory rulings
from the appellate courts. There are
several significant controversial cases to be decided by the Court by
June. By the time a new President is
sworn into office and he nominates someone to fill the vacancy and the
confirmation process is completed, the Court would have been without its full
membership for over a year. Justice
delayed is justice denied.
The
President may make a recess appointment within the next several days before the
Congress returns to session and would likely not recess again long enough the
rest of his term of office to allow him to make any recess appointment. Although a recess appointment would ease the
caseload of the Court, its rulings nevertheless would not settle the law, as
the appointment would only be temporary (until the end of Congress’ session, which is nearly to the end of the President’s term
of office). It would preclude the Obama from
making a permanent nomination, unless the recess appointee resigned or another
vacancy on the Court occurs.
The optimum
solution is for the majority of the Senate to declare that it would only
confirm someone nominated by the President who reveres the
Constitution and respects its principles of federalism and the Separation of
Powers and who would refrain from making law instead of only interpreting it,
as the Senate should insist regardless of which president is in office. A good judge, like Scalia was, ought not to
substitute what he thinks the law should mean for what the plain meaning of the
law is, as understood reasonably at the time the law was enacted. By fulfilling their constitutional role, the
majority of the Senate would not appear to be partisan or obstructionist, but Obama
would if he insisted on appointing someone unqualified.
In this way, either a pro-Constitution
Justice would be confirmed by the Senate to the Supreme Court without there
being a vacancy too long on the Court, or it would be President Obama’s fault
for insisting otherwise.
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