Wednesday, March 16, 2016

The President and the SCOTUS Nominee...

Today, President Obama will nominate a person to the Supreme Court of the United States (SCOTUS), filling the seat vacated by the death of Justice Antonin Scalia.  The President will be nominating Merrick Garland, the chief justice of the US District Court of Appeals for the District of Columbia Circuit. 

I am not going to go into a huge review of Garland’s resume, except to say that, regardless of his political bent, he is undoubtedly qualified to fill the open seat on the Court.

The President has performed his Constitutional obligation, and now the ball is squarely in the court (excuse the pun) of the Republican controlled Senate.  

Senate Majority Leader Mitch McConnell has repeatedly said that there will be no hearings for any nominee that the current President chooses, instead leaving the next President to fill the seat.  And in the truest form of irony, various conservative media outlets have produced video of President Obama and Vice President Biden recommending that exact position as Senators while George W. Bush was in office.

The larger question is: Should the Senate hold hearings and confirm the President’s nominee to the SCOTUS?

The simple answer is yes. And here’s why:

First, Article II, Section 2 of the Constitution:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

(highlights for relevance, italics for importance)

At some point, the “Advice and Consent of the Senate” clause has been bastardized to mean that the Senate gets to scrutinize every aspect of a potential Presidential nominee (and for the record – both parties are guilty of this abuse). Constitutional scholars and historians are at odds as to the meaning of the phrase, but nearly all would agree (I hope) that the Founders never envisioned the type of circus that exists now over Presidential nominations.

One could also argue that the nomination of a SCOTUS Justice is one of the most important powers that a President has, given the lifetime tenure of the appointment, to promote their ideas on government. This is not a new concept – Adams and Marshall’s plan to fill the judicial branch with Federalist judges was the first of MANY examples. There may be another discussion here about the lifetime appointment of federal judges, but what is relevant is that a SCOTUS lifetime appointment makes the nomination ever more important to the President and their values, but also to the Senate to confirm the appointment (which is a partial explanation of the rancor surrounding SCOTUS nominations).

Just because the nomination or the appointment is “high stakes” such as the SCOTUS appointment, does not grant the Senate the arbitrary purview to ignore the nomination.  

For the record – I believe that the Senate is obligated to conduct hearings on the President’s nomination.  Further, I believe that the Senate should confirm the President’s nominee, unless they find an extraordinary reason to suspect that the nominee is somehow unqualified for the position (which they will not find).  Political views or leanings are NOT grounds for finding a nominee unqualified for the position, regardless of any diametric opposition the Republicans may have to the nominee.  

My view will likely not win the day with the Republicans in the Senate – they will continue to preach their mantra and stall as long as possible. But it is not the right thing for them to do.