Senate Republicans Are Offending the Constitution in the Fight over Scalia’s Vacancy

March 22, 2016
Guest Post

by Joel T. Dodge, associate, Stroock & Stroock & Lavan LLP. The views expressed here are that of the author alone.

In 1987, President Ronald Reagan met with Senator Joe Biden, then chairman of the Senate Judiciary Committee, at the White House. Reagan was contemplating his third nominee to fill a Supreme Court vacancy after Robert Bork was voted down following a week of hearings, and after Judge Douglas Ginsburg withdrew his nomination following revelations that he smoked marijuana in college.

During the meeting, Reagan floated the name of Anthony Kennedy as a potential nominee. Biden replied, “Based on what I know, he's a mainstream conservative. He would probably pass.” Reagan nominated Kennedy days later, and in February 1988, the Democratic-controlled Senate confirmed Kennedy by a 97-0 vote.

The Constitution requires the Senate to provide advice on Supreme Court nominees, and to give its consent before the president’s nominee may be seated on the bench. The meeting between Reagan and Biden exemplifies this collaborative process: advice from the Senate Judiciary chairman, a nomination from the president, and a vote granting the Senate’s consent. The whole process works smoothly when everyone fulfils their constitutional roles.

Now fast forward 28 years. When Senate Republican leadership met with President Obama last month to discuss the vacancy left by Justice Antonin Scalia’s death, they told him that the Senate would outright refuse to consider any nominee he put forward.

So much for “advice and consent.” In refusing to fill Scalia’s seat, Senate Republicans are turning what the Constitution meant to be a collaborative process between two co-equal branches of government into a nakedly adversarial one.

In drafting the Constitution, the Senate was first inserted into the appointment process by James Madison precisely because it was thought to be the more “stable,” “independent,” and “deliberate” of the two legislative bodies. Madison also thought that the president was best fit to reflect the national democratic will in Court appointments, for he would be a “national officer, acting for and equally sympathising with every part of the U[nited] States.” So the president would bring a democratic voice to the process, while the Senate would provide reasoned, deliberative consideration.

Republican intransigence today turns this constitutional vision on its head. Senate Republicans now claim to be the defenders of the people’s voice in the process, promising to delay consideration of a nominee until after Obama leaves office.

It’s fair game for the Senate to vote down a nominee after good faith consideration, even over ideological disagreement. But altogether refusing to permit a sitting president to make a meaningful nomination is a brazen, bad faith disregard of the Senate’s duty to collaborate constructively to fill Supreme Court vacancies. It also cannot be what the Constitution intended, for such Senate refusal doesn’t just thwart the president’s own constitutional duties, but also undermines the institutional foundations of the judiciary, a separate and equal branch of government.

In actuality, this Republican obstruction is part of a larger ongoing effort to delegitimize Barack Obama’s presidency. This strategy began immediately upon his taking office, with Senate Republican leader Mitch McConnell vowing to deny the president bipartisan cooperation on any legislation, sight unseen. In year eight of his presidency, congressional Republicans are attempting to deny Obama the full authority of his term in office by refusing to even acknowledge his budget proposal or his Court nominee. And of course, the GOP is on the cusp of nominating as their flag bearer the loudest voice in the campaign to “otherize” the president as an alien ineligible to serve.

Despite Republican obstinacy, Obama has tried to approximate the Constitution’s “advice and consent” vision. While Obama weighed his options, Senator Orrin Hatch, the longest serving Republican on the Senate Judiciary Committee, said in an interview that “[Obama] could easily name Merrick Garland [to the Supreme Court], who is a fine man,” after previously calling for Obama to nominate Garland as a “consensus nominee” who had “no question” of being confirmed.

Days later, Obama took Hatch’s suggestion and nominated Garland, an eminently qualified moderate chief judge on the nation’s most important circuit court of appeals. Still, Senate Republicans have not relented, refusing to consider Garland despite his qualifications, simply because he was put forth by Obama.

It’s true that our Constitution makes no explicit demands on the Senate to conduct hearings or hold a vote on the president’s nominee. But the polarized intransigence and disregard for constitutional duty on display from Republican senators is still a gross affront to the Framers’ vision for our democracy. “Advice and consent” is a collaborative process, and at the end of the day, the Framers trusted that process to run on basic norms of good faith. When those norms are abandoned, the cracks in our democratic structure show. If Senate Republicans insist on putting partisanship before their constitutional duty to play a constructive role in this process, those cracks will only deepen.