Supreme Court Justice Antonin Scalia was a firm believer in our Constitution’s separation of powers — the assignment of distinct and sometimes offsetting powers to the different branches of the government. That separation provides the checks and balances that ensure we have “a government of laws, not of men.”
It is thus oddly fitting that Scalia’s death should stir a national conversation about the relative powers of the president and the Senate in filling the Supreme Court vacancy that now exists. No one doubts President Obama’s power to make a nomination. But some were surprised when the Senate’s majority leader announced that the Senate would not even consider confirming any such nominee, but would instead wait for the American people to elect a new president.
Unfortunately for those who would like to see another Obama nominee on the court, the answer is clear: The Senate can do exactly what its majority leader has promised it can: refuse to act on any nomination for as long as it likes, including until a new president takes office.
The president has only the power to nominate judges. The Senate has a co-equal power: It decides whether to give its consent to the nomination or not, and the Senate answers to no one but itself in determining whether it will confirm a nominee, or even take a vote.
This is a textbook example of our Constitution’s separation of powers, and is particularly important since federal judges, once confirmed, hold their seats for life, with no further popular oversight.
The Senate’s choice to wait until the people have elected a new president is worth debating as a policy matter, but it is fully consistent with the Senate’s constitutional duty. For example:
• The Senate is not and never has been a rubber stamp for Supreme Court nominees. The Senate has refused to confirm about one in five nominees to the court — a higher rejection rate than any other office.
• In about two-thirds of those cases, the Senate did not even take a vote.
• The Senate has never filled a vacancy that occurred this near to the election of a new president.
• The court (and the rest of the justice system) is perfectly capable of functioning with only eight justices. Justice Robert Jackson, for example, took a year’s leave from the court to serve as chief prosecutor at the Nuremburg war crimes trials after World War II. More recently, when President Obama nominated Elena Kagan to the court, her previous job as the administration’s top appellate lawyer required her to recuse from more than one-third of the court’s most important cases during her first year as a justice. In both instances, the justice system carried on.
• The president and his supporters cannot credibly complain about “politicizing” the court. Not only is that water over the dam, but the dam long ago collapsed — thanks to the very people now criticizing our representatives for asserting their constitutional power.
If the court is political, it is because liberal politicians, lawyers, judges and academics have successfully urged it to make itself a super-legislature, and the Supreme Court is now where our most important political debates are decided, often based not on the language of the Constitution but on the personal preferences of the court’s majority.
So if the court is going to render uniform, national rules governing our most difficult and divisive political and cultural issues, then our representatives in the Senate must have the fullest say possible in deciding who joins that court. Particularly in this unique circumstance, when a vacancy has arisen only a few months before we elect a new president, the country will benefit from waiting for the people to have their say.
Justice Scalia labored tirelessly to restore Americans’ appreciation for the rule of law, in particular the separation of powers. Now is no time for the Senate to forget that.
Lawyer Dan Domenico is managing partner of Kittredge LLC. He has argued cases before the U.S. Supreme Court.
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