by William Marshall, the William Rand Kenan, Jr. Distinguished Professor of Law, UNC School of Law; Marshall is also a member of the ACS Board of Directors.
I understand that some have vehemently criticized Senator McConnell for proclaiming that “[t]he American people should have a voice in the selection of their next Supreme Court Justice.” But Senator McConnell is right. The American people should have a voice in the selection of Supreme Court justices. And, as long as we are on the subject, we might also note that the American people should have a voice in the selection of judges appointed to the lower courts.
The problem is that Senator McConnell has apparently forgotten that the American people have already exercised this right. In 2012, they elected Barack Obama President of the United States. This means that the American people have already voiced their decision that Barack Obama, under Article II § 2 of the United States Constitution should, among his other duties and obligations, “nominate Judges of the supreme Court.”
It is really that simple. So simple, in fact, that John Adams, the second president of the United States, saw no problem in appointing John Marshall to be the Chief Justice of the Supreme Court even after Thomas Jefferson defeated Adams in the election of 1800. So simple that the United States Senate in 1801 confirmed Adams’ nominee event though Jefferson was only weeks away from assuming office. So simple that in 2016, no presidential candidate from either party has even remotely suggested that he or she would not nominate a candidate to the Supreme Court if a vacancy arose during his or her last year in office. (Where else has there been such unanimity in this race?)
The contrary conclusion that a president should abrogate his duty to appoint judges at the end of his term simply cannot be squared with the Constitution. Article II sets the term of the presidency at four years; not three years, not three years and a quarter, and not three years and one half. The Twenty-Second Amendment to the Constitution imposes a two-term limit on the presidency – it does not impose a mid-term limit. Neither Article II nor Amendment XXII (or for that matter any other constitutional provision) suggests or implies that some presidential powers should be exercised until the president’s last day in office while others should be abandoned months or years before.
Few constitutional questions are this easy. The president appoints Supreme Court justices, and the Senate provides advice and consent. Both should start doing their jobs.