by Richard W. Painter, S. Walter Richey Professor of Corporate Law, University of Minnesota Law School; former Associate Counsel to the President and chief ethics lawyer, White House Counsel's Office (2005-2007); co-author of the ACS Issue Brief, “Extraordinary Circumstances: The Legacy of the Gang of 14 and a Proposal for Judicial Nominations"
The Constitution is clear. Presidents have four year terms, Senators have six year terms, and Members of the House of Representatives have two year terms. Their powers and responsibilities are carried out throughout their term in office. We do not take a “time out” from orderly government just because it is an election year.
Justice Antonin Scalia – one of the greatest jurists in the history of Anglo-American law – did not give an excuse for our Country to descend into chaos simply because he departed from us in an election year.
In an election year as in every other year it is the responsibility of the President to nominate judges, including Justices of the Supreme Court. It is the responsibility of the Senate to advise the President on nominations and to decide whether to give its consent to particular nominations. This includes holding hearings to determine the suitability of a nominee and voting on nominees just as the Senate votes on legislation, treaties and other matters.
Or does our government simply grind to a halt because it is an election year? Does the President stop nominating people to vacancies in the judiciary and the executive branch? Does the Senate refuse even to hold hearings? Is no new legislation introduced? Perhaps so, if we assume that the only responsibility of the President and both houses of Congress for an entire year is to collect their paychecks and focus only on the election.
And so executive branch regulators shouldn’t do anything significant – or perhaps even show up for work – because it is not clear who the new President will be a year from now? And perhaps the military need not take orders from the Commander in Chief for the next year, because after all we will have a new Commander in Chief a year from now?
Everything simply shuts down or worse because it is an election year. This is because we are no longer a great power and those who govern us choose to act as if we were a Banana Republic.
We know, and the members of the Senate Judiciary Committee know, that the Constitution did not intend for it to be this way. This government functions with two houses of Congress and a President until January 20, 2017 and on that day the government will continue to function with two houses of Congress and a President. Our government has the power, and the responsibility, to enact needed laws, to nominate and confirm judges and other officers to fill vacant positions, to take military action if needed and to declare war if our Country is attacked by an enemy. There is no Election Day – much less election year -- exception to any of this.