by Peter Shane, Jacob E. Davis and Jacob E. Davis II Chair in Law, The Ohio State University Moritz College of Law
*This article first appeared in Washington Monthly.
It would probably delight the late Justice Antonin Scalia to know that the fight over his successor was generating constitutional controversy. Indeed, like many controversies that Justice Scalia fueled, this one concerns not only the implications of particular clauses, but the very nature of constitutional law.
In nominating Judge Merrick B. Garland to succeed Justice Scalia, President Obama declared: “As President, it is … my constitutional duty to nominate a Justice… . I hope that our Senators will do their jobs, and move quickly to consider my nominee. That is what the Constitution dictates… .”
The President’s rhetoric of duty and obligation, however, quickly elicited dissents. Noah Feldman writes: “[I]f Obama didn’t want to nominate a replacement for Justice Antonin Scalia at all, it would be within his constitutional discretion not to do so.” As to the Senate, Jonathan Adler argues: “The Senate may withhold its consent by voting down a nominee, but it may also withhold its consent by refusing to act, or otherwise failing to confirm a nominee.” These two esteemed legal scholars with very different politics are hardly alone in their views.
The arguments for the “not-a-duty” position are typically based on the sorts of textual and historical arguments Justice Scalia advocated. Article II declares that the President “by and with the advice and consent of the Senate, shall appoint … judges of the Supreme Court.” But “shall” in legal instruments does not always mean “must.” As for the Senate, “Each House [of Congress] may determine the Rules of its proceedings.” Such blanket language on its face supports the idea that the Senate has the discretion to proceed with nominees quickly or slowly, with much or little debate, or, indeed, not at all.
Lost in the fog, however, is an idea of the Constitution that Justice Scalia no doubt regarded as “argle-bargle,” but which is both historically and in principle a stronger and more appealing concept than his own. It is the view that Chief Justice John Marshall elaborated in the famous 1819 case upholding the constitutionality of the National Bank of the United States, McCulloch v. Maryland.