A Philosopher's Blog

Replacing Scalia

Posted in Law, Politics by Michael LaBossiere on February 17, 2016

Scalia 2016

The death of Antonin Scalia has left a vacancy on the United States Supreme Court and, of course, has set off a political storm of predictable proportions and positions.

For the most part, Republicans are claiming that Obama should not appoint a replacement. Rather, this should be left to the next President.  The current plan of the Senate Republicans seems to be to simply refuse to hold hearings. There is, however, some talk about holding hearings and simply rejecting anyone Obama nominates.

Democrats, as might be expected, tend to hold that Obama has the right to make the appointment and that the senate should confirm his choice. There is also some talk that if the Republicans obstruct the nomination, then Sanders or Clinton should nominate Obama if one of them is elected President.

Both parties are, as usual, engaging political maneuvering and trying to determine what will best benefit their party in terms of the upcoming elections and scoring political points. The Republicans are also operating on their principle of hating Obama and opposing everything he does. The Republicans hope that by engaging in obstructionism, they can appeal to their base and thus garner re-election for Republican senators who might be at risk. They also hope to milk this to help whoever is the Republican candidate. Interestingly, the Republican candidates are also using this matter to bash each other–although most bashing is being aimed at Jeb Bush. While some pundits claim that the Republicans can hurt themselves through their obstructionism, the past seems to show that they are rewarded politically for such behavior.

While most Democrats want Obama to be able to make the appointment, they are also working out how to best exploit the situation. One strategy is to nominate a candidate that is incredibly appealing and eminently confirmable so as to make the Republicans look bad, thus helping out Democratic candidates. While somewhat sensible as a strategy, it does rest on the assumption that it will win over voters who are not already won over. This might not prove to be as effective as the Democrats might hope.

Obviously enough, if the situation were reversed, the Republicans would be howling that the Republican president has every right to present a nominee and that the obstructionist Democratic senators would be obligated to hold hearings and approve his choice, no doubt for “the good of the country.” The Democrats would, of course, be screeching that the nomination must wait for the next president and that they are acting for “the good of the country.” As always, I prefer to operate on the basis of principle rather than operating on what just happens to be in my interest at the moment. As such, I will endeavor to consider the matter as neutrally as possible and put forth a position that I can hold regardless of which party is on which side.

Since Scalia professed to be a constitutional originalist, it is fitting to refer to the Constitution and see what it says about this matter. Article II, Section 2 of the Constitution addresses the process of Supreme Court appointments:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

While I am not a constitutional scholar, I can read English well enough to see what the Constitution specifies about this matter. The president unambiguously has the power to nominate Judges of the Supreme Court. Since Obama is still the President, he has the constitutional right to make the nomination. This would, obviously enough, hold up to the point at which he ceases to be President. Obama can also make appointments when the Senate is in Recess-there is, however, debate about what exactly counts as recess. However, the text is clear that any such appointment would last only until the end of the next session of the Senate, thus putting a clear and short limit on such appointments.

The text is also clear that the appointment of the Judges of the Supreme Court requires the “advice and consent” of the Senate. Since the constitution does not actually specify the process, the Senate has created its own confirmation rules. In general, the approval process has been fairly quick in the past-so there is no real argument that there is not enough time to give an Obama nominee appropriate consideration. There have also been appointments made in the last year of a President’s term-so an appointment by Obama would be consistent with past precedent. That said, since the Senate makes its rules, they have every right to make whatever changes they see fit-provided that they are consistent with the Constitution. This would certainly open the door to running out the clock on hearings or even refusing to hold them. However, refusing to hold a hearing could be problematic. The text certainly seems to indicate that the Senate is supposed to provide its advice and give or withhold its consent. There does not seem to be an option for refusing to consider a nominee. This, as some would argue, would seem to be simply refusing to do their job. That said, it could be argued that refusing to hold hearings would be refusing consent, and thus it is within their power. The filibuster could also be deployed as well to delay proceedings and run out the clock, so to speak. As such, the Senate does seem to have the right to obstruct the president in regards to nominations, which would obviously run afoul of the need to fill the vacancy.

My own view is that since the President has the right to nominate and the Senate has the role of advice and consent (or refusal of consent), the Senate is obligated to consider the nomination made by the president. Refusing to do so or running out the clock would be a failure of their specified duty. I hold to this view regardless of the political parties of those involved and will, of course, leave this post up in perpetuity in case the situation should arise with a Republican president and a Democrat dominated senate.


7 Responses

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  1. ajmacdonaldjr said, on February 17, 2016 at 11:14 am

    “There is nothing which I dread so much as a division of the republic into two great parties, each arranged under its leader, and concerting measures in opposition to each other. This, in my humble apprehension, is to be dreaded as the greatest political evil under our Constitution.” ~ John Adams (Letter to Jonathan Jackson, October 1780)

  2. nailheadtom said, on February 17, 2016 at 1:29 pm

    “While I am not a constitutional scholar, I can read English well enough to see what the Constitution specifies about this matter.”

    Me, too. And every other English-speaker. That’s why the extended and arcane deliberations of the supremes are so preposterous. Any English-speaker should be perfectly capable of interpreting the US Constitution, if it even needs interpretation. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” That’s the 10th amendment. Seems pretty clear to me. Yet the federal government is forever messing around with education, id cards, automobile gas mileage, etc., etc. Of course the choice of a supreme court justice is important because they have a different level of reading comprehension than us lesser beings.

    • WTP said, on February 17, 2016 at 2:16 pm

      The 10th amendment was essentially nullified in Wickard vs. Filburn back during the FDR administration. Not having been around then, I’ve often wondered if the distraction of the events following Pearl Harbor did not have something to do with slipping this one past the people:


      Unanimously no less. You were screwed before you were even born. And by the SCOTUS itself. The very institution entrusted with protecting your rights.

      • nailheadtom said, on February 18, 2016 at 12:10 am

        Of course, you’re right. The court however, was wrong, as anyone who can understand English can attest.

  3. TJB said, on February 18, 2016 at 8:22 am

    It’s like a ratchet and pawl: things move only one way, and can’t be changed back. Click, click,click. The Constitution is only a piece of paper. The 1st amendment will be next to go, I’m afraid.

  4. TJB said, on February 18, 2016 at 8:24 am

    Actually, whenever a politician says “that’s not who we are” he is calling his opponents un-American. BHO des this all the time.

  5. TJB said, on February 18, 2016 at 7:41 pm

    This one’s for Magus, wherever he may be:

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