• March 3, 2016
    Guest Post

    by Jamal Greene, vice dean and professor of law, Columbia Law School. Professor Greene teaches and writes in the areas of U.S. constitutional law and theory, federal courts, and comparative constitutional law.

    * This post was excerpted from Professor Greene’s statement to the Senate Democratic Steering and Outreach Committee.

    The duty of the Senate in regards to its constitutionally enumerated functions is measured by whether its exercise of those functions serves the Constitution’s purposes and is consistent with well-established institutional practices. By that measure, the Senate has a constitutional duty to give due consideration to anyone nominated by the president to fill a Supreme Court vacancy. In the modern history of the nation, there is no precedent for the Senate’s deliberately refusing to vote on a nominee to a vacant Supreme Court seat, whether during an election year or at any other time.

    I. The Constitutional Duty to Consider Supreme Court Nominations

    Republicans currently hold a majority of seats in the Senate and on the Senate Judiciary Committee. Accordingly, should the party remain unified, it has the capacity to refuse to schedule a hearing on any executive nomination or to refuse to report a presidential nominee out of committee. A government institution’s capacity to exercise political power is not, however, the measure of its responsibility under the Constitution. Rather, constitutional duty is best measured by an institution’s exercise of the enumerated responsibilities necessary to serve the Constitution’s purposes.

    The Constitution explicitly informs us of those purposes. The Preamble states that “We the People” establish the Constitution in order to, among other things, “establish Justice.” The Framers believed that part of the reason behind the failure of the Articles of Confederation was its failure to provide for any federal court system. As Alexander Hamilton wrote in Federalist 78, “In unfolding the defects of the existing Confederation, the utility and necessity of a federal judicature have been clearly pointed out.” The Supreme Court was among the major innovations of the new Constitution. Unlike all other federal courts and indeed all other institutions subject to executive appointment, the Supreme Court is established by the Constitution directly. Its existence does not depend on congressional action, and Congress—much less the Senate acting unilaterally—does not have the authority to disestablish it.

    It is no surprise, then, that the Constitution specifically enumerates the President’s power to “nominate, and by and with the Advice and Consent of the Senate . . . [to] appoint . . . Judges of the supreme Court . . . .” The Framers did not contemplate the use of the Senate’s advice and consent power solely to run out the clock on a presidential appointment. As Hamilton speculated in Federalist 76, rejection of a nominee “could only be to make place for another nomination by [the President].”

    Viewing the appointments power as a whole confirms the Framers’ assumption that the President and the Senate would work together to ensure a functioning government. When the Senate is in recess, the President has the power to appoint officers to fill vacancies, including on the Supreme Court. This power implies that when the Senate is in session, it is expected to act on the President’s nominations. Past presidents have used the power of recess appointment for Supreme Court nominees, including for three nominees of President Eisenhower. Although the Senate expressed its disapproval of this practice in a 1960 “sense of the Senate” resolution, that resolution notably included an express exception for recess appointments “to prevent or end a breakdown in the administration of the Court’s business.”

  • March 3, 2016

    by Jim Thompson

    According to a recent poll, two-thirds of Americans want the Senate to hold hearings for a potential Supreme Court nominee, says Caitlin Cruz at Talking Points Memo. Further, 58 percent of respondents said they want President Obama to appoint the new judge, not the next president.

    At Slate, Dahlia Lithwick provides commentary on yesterday’s oral arguments in Whole Woman’s Health v. Hellerstedt and celebrates the Supreme Court’s new gender balance in the post-Scalia era, saying the female justices “are just not inclined to play nice anymore.”

    Earlier today, Chief Justice John Roberts refused to block an Environmental Protection Agency regulation limiting emissions of mercury and other toxic pollutants from coal-fired power plants, writes Adam Liptak at The New York Times.

    Brian Encinia, the Texas state trooper who arrested Sandra Bland, was fired after failing to “rebut disciplinary charges leveled against him in January,” reports Stephen A. Crockett, Jr. in The Root.

    At the Huffington Post, Jennifer Bendery chastises Georgia lawmakers considering “a law that would let any taxpayer-funded organization deny services to same-sex couples, or unmarried couples in general, by citing religious freedom.”

  • March 2, 2016

    by Jim Thompson

    Ahead of today’s oral arguments in Whole Woman’s Health v. Hellerstedt, the Editorial Board at The Washington Post says the Supreme Court should dismiss baseless claims that Texas’s restrictive abortion laws are designed to protect patient health.

    South Dakota Gov. Dennis Daugaard (R) on Tuesday vetoed a discriminatory bill that would have required transgender students at the state’s public schools to use bathrooms that match their gender assigned at birth, report Greg Botelho and Wayne Drash at CNN.

    The Supreme Court on Monday declined to hear a lawsuit challenging the constitutionality of a New Jersey law banning conversion therapy for LGBT minors, writes Chris Johnson at the Washington Blade.

    Laws disenfranchising ex-felons will prevent nearly six million citizens from voting in this year’s presidential election, laments Nathalie Baptiste at The American Prospect.

  • March 1, 2016
    An Argument Open to All
    Reading "The Federalist" in the 21st Century
    Sanford Levinson

    by Sanford Levinson, W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair and Professor of Government, University of Texas at Austin School of Law

    Early in my new book, An Argument Open to All: Reading "The Federalist" in the 21st Century, I refer to the set of essays published in 1787-1788 as “the best known, most widely read and analyzed extended work of American political thought.” I now believe, from talking to many colleagues and students, that the reference to “widely read” is almost certainly wrong. Many people have no doubt read Federalists No. 10, 47, 51, and 78, but there are 81 additional essays, most of which languish in obscurity.

    So the central question is whether there is good reason for a 21st century reader in fact to read The Federalist beyond the few “greatest hits.” It is obvious why someone interested in the formation of the Constitution would be interested in the entire corpus. Interestingly, it is less obvious why anyone with a particular interest in interpreting the Constitution would have to read it; very few of the 85 essays actually relate to the controversies that come before the judiciary or other constitutional interpreters in the 21st century. Most of them are devoted to explaining why the system established by the Articles of Confederation was “imbecilic;” why unifying behind a new constitution was essential to defense against what we would today call threats to our national security; and broad discussions of the institutions that comprise our political system (and which, being “hard wired,” are almost never the subjects of litigation).

    My book consists of 85 separate essays, each one corresponding to the respective original essay. They offer not so much an exegesis of the original as an inquiry whether it still has anything to tell us about constitutionalism in the 21st century. Underscoring the “presentism” of the essays is the fact that I refer exclusively to Publius, the notional author, and not to the actual historical authors Alexander Hamilton, John Jay, or James Madison. One of the consequences of adopting that approach is that I don’t have to concern myself with the question of the authors’ “sincerity” or genuine belief in their own arguments, shaped to elicit the votes of ratifiers at the state ratification conventions in 1788. My audience is persons interested in the Constitution in 2016 (or in 2020). Should they (you) make time at least to read my book and perhaps even return to The Federalist itself? To a degree that genuinely surprises even me, given my own doubts when I embarked on this project, I think the answer is yes.

  • March 1, 2016

    by Jim Thompson

    At Hamilton and Griffin on Rights, Leslie C. Griffin previews oral arguments in Whole Woman’s Health v. Hellerstedt, concluding, “A more deferential attitude toward all abortion regulations combined with a weakened undue burden standard would mark a significant change in the Court’s abortion jurisprudence and an invitation to the states to pass new regulations.”

    FBI Director James Comey and Apple General Counsel Bruce Sewell will both testify before the House Judiciary Committee today, reports Alina Selyukh at NPR. Lawmakers will consider if the FBI has “the right to compel a company to produce a product it doesn't already make, to the FBI's exact specifications and for the FBI's use.”

    German Lopez at Vox criticizes the punitive treatment of Americans with mental illnesses, attributing the issue to an underfunded mental health system that relies on an overly-aggressive criminal justice system to “pick up the slack.”

    Associate Justice Clarence Thomas spoke from the bench for the first time in 10 years on Monday, revealing a new dynamic on the Supreme Court since the death of Justice Antonin Scalia, writes Garrett Epps at The Atlantic.