by Adam Winkler, Professor of Law, UCLA School of Law
*This post is part of ACSblog’s 2015 Constitution Day Symposium.
On this Constitution Day, we would do well to focus on politics. While it is true that the Constitution is “the supreme Law of the Land” (Article IV, section 2) and that there are important differences between law and politics, time has come for those who love the Constitution to turn to politics – and not just any politics but politics of the basest kind: partisan, electoral politics. For the future of the Constitution rests in the hands of the men and women who are running to be elected “President of the United States” (Article II, section 1).
Candidates are vying for the voters’ support by endorsing major policy initiatives, such as Bush’s tax plan or Clinton’s voting reforms. Regardless who wins, these legislative efforts require the support of both the House and the Senate (Article I, section 7), which aren’t likely to go along easily. The House is expected to stay Republican, inhibiting anything a Democratic president could achieve. The Senate is expected to shift Democrat, limiting any GOP president’s legislative agenda.
One place where the president will likely have a strong impact is the future of the Constitution. While Supreme Court nominations require “the Advice and Consent of the Senate” (Article II, section 2), in practice few nominees are rejected absent a glaring lack of qualifications or an obviously extreme judicial philosophy. And the next president is almost certain to select at least one and possibly four Supreme Court Justices. When the next president is sworn in on January 20, 2017 (20th Amendment, section 1), three justices will be over eighty (Ruth Bader Ginsburg, Antonin Scalia, and Anthony Kennedy) and one nearing that age (Breyer).