Skip to comments.What Would Scalia Say?: No reason Obama shouldn't appoint
Posted on 02/14/2016 7:18:44 PM PST by Daniel Clark
What Would Scalia Say?: No reason Obama shouldn't appoint
by Daniel Clark
"Elections have consequences." President Obama once said that, and yet it's true. One might have hoped we'd all have learned it by now.
The consensus among the candidates at the South Carolina Republican Primary Debate was that Obama is somehow obligated to abstain from appointing a successor to the late Supreme Court Justice Antonin Scalia. Their basis for this argument is that it's a tradition that a president does not make a Supreme Court appointment during an election year, especially when that appointment would dramatically change the Court's ideological makeup.
Well, actually, it's not something that's not traditionally done so much as it is something that simply doesn't come up very often. Whatever the case, the claim has no constitutional basis. Article II Section 2 says that the president "shall appoint" Supreme Court justices "by and with the Advice and Consent of the Senate." This empowers the Senate to reject a particular appointee if it wishes, but it does not allow that body to preemptively deny the president the ability to make an appointment. The idea that the phrase "shall appoint" could be interpreted as "may appoint, unless otherwise bound by some nebulous political tradition" is the kind of anti-constitutional reasoning that the famously caustic Scalia would regularly lampoon in his dissents.
The Republicans are sounding less like Scalia than they are like Obama, who often invokes imaginary, unwritten contracts to which he subordinates the Constitution. Surely, most of them know better. The time to take a stand is not before the president has exercised his constitutional duty to appoint a justice to the Supreme Court, but when the time comes for an up-or-down Senate confirmation vote on a specific appointee. If that appointee disdains the written law, as liberals tend to do, then the nomination must be defeated.
What conservative senators like Ted Cruz and Marco Rubio understand, however, is that their colleagues lack the will to wage that battle. They know that any nominee Obama sends them is going to be an affront to the Constitution, but that a certain number of invertebrate GOP Jellyphants will vote for confirmation anyway. In 2009, the Senate was presented with a video of nominee Sonia Sotomayor openly declaring that it is the role of the judiciary to create law. Nevertheless, she now sits on the Supreme Court, where she may poison American jurisprudence for decades to come, with the blessing of nine Republican senators.
The Jellyphants are constantly aquiver at the prospect of provoking a government shutdown, an event that has never been known to have any electoral consequences. They consider Cruz to be a dangerous zealot, just because he promotes legislation that Obama would be inclined to veto. How much wobblier will they become when faced with an election-year Supreme Court nomination fight?
Not only have they shirked their responsibility to stop Obama's two previous Supreme Court appointees from being confirmed, but they've gone along with, and even praised, his appointments of dangerous left-wing authoritarians like former attorney general Eric Holder, former education secretary Arne Duncan, and "science czar" John Holdren. If they were unwilling to resist Obama in lower-profile cases like those, theyâre not about to invite media criticism by opposing him while the whole nation is watching.
It's totally understandable that conservatives would want to avoid that scenario, but their assertion that Obama is bound by tradition to thwart his own nomination is constitutionally unsupportable. Furthermore, it lacks any mechanism to compel the president's cooperation. All he has to do is to say no, and appoint a nominee anyway, and he'll have made the whole field of Republican presidential candidates look like a gaggle of irrelevant pipsqueaks. What masochists they must be, to have voluntarily given him the power to do that to them.
That the candidates would present this peculiar demand as if it were a defense of Scalia's principles is sadly ironic. Scalia was the champion of the judicial philosophy known as originalism, by which the law should be interpreted according to the original intent of its authors. There is absolutely no evidence that it was our founders' intent that the president abrogate his responsibility to appoint a justice to the Supreme Court, just because a vacancy has arisen under politically volatile circumstances.
If the Republicans really want to pay their respects to Justice Scalia, they will kindly stop doing the very thing that he had fought against his entire life, which is simply making something up that they wish to be in the law, but isn't.
-- Daniel Clark is a writer from Pittsburgh, Pennsylvania. He is the author and editor of a web publication called The Shinbone: The Frontier of the Free Press, where he also publishes a seasonal sports digest as The College Football Czar.
Dems in Senate passed a resolution in1960 against election year Supreme Court appointments
By Thomas Lifson
Read it and weep, Democrats. The shoe is on the other foot. David Bernstein at the Washington Postâs Volokh Conspiracy blog:
Thanks to a VC commenter, I discovered that in August 1960, the Democrat-controlled Senate passed a resolution, S.RES. 334, âExpressing the sense of the Senate that the president should not make recess appointments to the Supreme Court, except to prevent or end a breakdown in the administration of the Courtâs business.â Each of President Eisenhowerâs SCOTUS appointments had initially been a recess appointment who was later confirmed by the Senate, and the Democrats were apparently concerned that Ike would try to fill any last-minute vacancy that might arise with a recess appointment.
The GOP opposed this, of course. Hypocrisy goes two ways. But the majority won.
As it should this time.
I like what Cruz said this morning.... constitution says President will nominate and Senate is responsible for advice and consent. He said the senate’s advice to obammy is not to nominate anyone...
Flashback: In 2007, Schumer Called For Blocking All Bush Supreme Court Nominations
Bork the appointee.
Daniel is full of crap. Jug Ears can’t do anything. Period. Only Congress can appoint.
On the first question, he says, âthe majority has to invent new rules for how long a recess can be before the President is allowed to make recess appointments: A three-day break is too short. A four-to-nine day break is probably too short, unless the President can persuade a court that the situation was really urgent. And ten days is probably long enough most of the time, although the majority isnât really clear about that.â âThese new rules have no basis whatsoever in the Constitution,â Scalia continues. âThey are just made up.â
Speaking of Democrats in 1960.
Reason? Here it is:
“Congress Can Deny Barack Obama the Power to Replace Justice Scalia”
http://www.cato.org/blog/constitution-allows-congress-deny-barack-obama-power-replace-justice-scalia A Reasoned Winning Argument.
Obama and the ComDems can pound sand.
Suddenly the left is interested in the Constitution.
I honestly don’t know. He asked for Kagan on the Court apparently. He was a strict constitutionalist so who knows what his opinion would be. Ginsberg said she wouldn’t leave the bench until she wanted to and doesn’t matter if it is a Republican or Democrat. I don’t think the Court is as political as we are.
Congress has the authority to change the number of members on the Supreme Court from the current 9 to 8. Then there would be no vacancy to fill.
I agree - No reason Obama shouldn’t appoint a conservative justice to replace a conservative justice. Anything other than that is DOA.
I don’t think it makes any difference whether he appoints a judge or not. The choice will never make it out of the house. And any person thinking two socialists like Clinton or Sanders have the capacity to appoint a judge that best contours the populous of the US, is certifiable. Obama’s a lame duck president and there isn’t a conservative on the planet that would give any of his thoughts a second look or the time of day when they don’t have to. There are a lot of liberals that don’t trust him either. He’s burned a lot of bridges. So, it’s a non-entity.
“Suddenly the left is interested in the Constitution.”
Hahahahaha...yeah. Funny how this is all working out. I thought they might try to keep things quiet while we were engaged in re-litigaating the war and bashing Bush and screaming about what crap the GOP is. They were happy as little clams. This must have actually come at a bad time for them.
The Senate is free to do as it pleases with any nominee for the Court, including nothing. It could simply drag its feet until the new Senate is sworn in.
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