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.