On March 16, President Obama announced his plan to nominate federal Judge Merrick Garland to replace the late Antonin Scalia on the Supreme Court. For the past several weeks since Scalia’s passing, there has been quite a political brouhaha about filling the vacancy on the Court. On the one side, President Obama and the Democrats claim that there is a Constitutional duty to place a new Justice on the Court. On the other side, the Republicans in the Senate claim that they will not hold confirmation hearings for any Obama nominee.
So, who is right? Both of them are, and the answer lies in Article II of the Constitution, and in Federalist 51.
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.
There are two components of this clause upon which the argument about the duty to nominate Justices are hinged. The first component is the phrase which reads “He shall have power… and he shall nominate… shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States…” However, the clause provides a caveat to this power by adding the phrase “by and with the advise and consent of the Senate.” Hence, the duties laid out in this clause are twofold, and the clause addresses two different entities in the nomination process.
It is true that the President has a duty to nominate public officials for positions like Justice of the Supreme Court. However, it is the duty of the Senate to advise the President on such a matter, and to have the final say on such a nomination. Think of it like an election. Simply because a party primary nominates a candidate does not mean that the populace is obligated to elect that candidate to office. The people can and do reject candidates all the time. The Senate has that same power, and it has exercised it in the past, nothing unconstitutional about it.
The Senate has the right to withhold its consent on a nominee. In this case, Sens. Mitch McConnell and Mike Lee have made clear in no uncertain terms that no hearings will be held for an Obama nominee.
Office of Senator Mike Lee: “The president has full and complete power to nominate individuals to the Supreme Court, as he will reportedly do later today,” Sen. Lee said. “But the Constitution also gives the Senate the full and complete power to reject or confirm the nominee,” Lee continued. “It’s as simple as that.”
Some have touted the line that the Senate is not doing its job by refusing to hold confirmation hearings. However, the opposite is true; the Senate is doing exactly what is was designed for: to counteract the ambitions of the Executive.
Let me repeat for emphasis: the Senate is doing exactly what it was designed to do. Let us look to the wisdom of James Madison in Federalist 51 for guidance.
It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal.
But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place…
This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other — that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State.
Just as Madison explained so long ago, what we see in Washington is ambitions counteracting ambitions: the exact function of the Senate and Executive under the Constitution. So, in an odd occurrence, the federal government is acting in a way that is consistent with the meaning and intent of the Constitution. And what do we see but the Left complaining about it? How about another history lesson then…
In 2007, the Supreme Court had a vacancy. Obviously, the questions arose about who would be the nominee for the vacancy. However, this was during the final year of the Bush administration. Therefore, Senator Chuck Schumer, in his usual manner, claimed that no more Bush nominees should be confirmed.
Lo and behold, come 2016, Schumer was one of the first to stir the pot about the GOP’s defiance of any Obama nominee. Indeed, Schumer stated that,
Many of the mainstream Republicans, when the president nominates a mainstream nominee, will not want to follow Mitch McConnell over the cliff,” Schumer said on ABC’s “This Week.”
On this issue, Schumer (2016) and Barack Obama (2016) are wrong. Mitch McConnell and Mike Lee, along with 2007 Chuck Schumer, and 2007 Senator Barack Obama, are correct. The Senate is doing its job, and the beauty of the American Constitutional system is on full display. Enjoy it, for this is one of the few times that one sees ambitions counteracting ambitions in a capitol run by big government elitists.