‘The people’ do not determine justices on Supreme Court
Senate Republican Majority Leader Mitch McConnell and his Republican colleagues have come up with the novel idea “the people” should have a voice in determining who is the next nominee to the Supreme Court.
Within hours of the announcement of the recent death of Justice Antonin Scalia, Mr. McConnell made the statement: “The American people should have a voice in the selection of their next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president.” He has since said repeatedly no action of any kind will be taken by the Senate on anyone nominated by President Obama, and Senate Republicans will not even show the courtesy of meeting an Obama nominee.
Senate Republicans claim consideration of an appointee in a presidential election year will create a toxic environment, as if a more appalling campaign could exist than the one already poisoned by their disgusting and dangerous front-runner for the Republican nomination.
Article II, Section 1 of the Constitution is the only guide for appointing Supreme Court justices. It provides the president “shall” nominate and “by and with the advice and consent of the Senate” shall appoint judges of the Supreme Court. Notice the authors wrote “shall” nominate, not “may” nominate. “Shall” is a commandment, not a grant of discretionary power; it implies a duty. There also is no qualifying clause on the president’s duty to nominate, such as, “except in the last year of a president’s term or a presidential election year.”
Nothing in that section means the Senate must approve a president’s nominee, but since the founding of this Republic it has meant the Senate collectively considers a president’s nominee and decides whether to give or withhold its advice and consent. Nominees have failed to gain the Senate’s approval, but the Senate has never arbitrarily refused to consider a nominee, effectively denying the president’s ability to carry out his constitutional duty and authority.
“The people” are not mentioned in Article II, much less given a role in this process. In fact, the authors of the Constitution didn’t even give the people a voice in the election of members of the Senate. Senators were chosen by the legislature of each state, whereas the people have always elected members of the House of Representatives. It was not until the adoption of the 17th Amendment in 1913 the people elected senators. If the authors didn’t trust the people to elect senators, why is there any reason to claim they believed the people should have a voice in selecting Supreme Court justices, who have life tenure and the power to declare acts of Congress unconstitutional?
Senate Republicans, who claim to be protectors of the Constitution, are trampling on that founding document.
The truth is twofold: first, senate Republicans want conservative justices to hold the balance of power on the Supreme Court and don’t trust a Democratic president to appoint a conservative justice, and, second, their hatred of President Obama blinds and overpowers their sense of duty and fairness.
Mr. Obama has nominated Merrick Garland, a consensus choice, to be a Supreme Court justice. Senate Democrats will allow an orderly process to go forward. It’s Senate Republicans, together with Brother Trump, who are poisoning the political process.
Bo Statham is a retired lawyer, congressional aid and businessman. He lives in Gardnerville and can be reached at firstname.lastname@example.org.