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The Scalia Replacement Battle Calls For Putting The Constitution First (Forbes.com) February 17, 2016

Posted by daviddavenport in Op/Eds, Politics.

Are former U.S. Attorney General Alberto Gonzales and I the only conservatives in America who believe President Obama should nominate a replacement for Justice Scalia and that the Senate is obligated to take an up or down vote?  If so, it must be because we place constitutional faithfulness ahead of political conservatism and we find the constitutional obligations to be relatively clear.

Article Two, Section 2 of the Constitution provides that the president “shall nominate and by and with the advice and consent of the Senate, shall appoint…judges of the Supreme Court.”  If this question came up after a new president was elected in November and before taking office in January, sure you would delay the process.  But a new president will not take office for 11 months, so does the Constitution contemplate the Senate just refusing to advise and consent for a year?  I don’t think so.

I’ve read the arguments of conservatives, and they are mostly political, not legal or constitutional.  The Democrats would do the same thing to us, they say.  The balance of the court is too close, and the consequences too important, to allow President Obama’s nominee to go forward.  Well and good, but none of that really affects the Senate’s constitutional obligation.

To the extent that actual constitutional arguments are put forward, they are tenuous at best.  One argument is that the Constitution doesn’t actually mandate that the Senate act.  The Constitution is a relatively brief document at 4543 words (compare Obamacare at 381,517 words) and, while it is true that it doesn’t mandate every right and responsibility listed, the founders probably assumed good faith and responsible citizenship from our leaders.  Ted Cruz’s glib comment on “Meet the Press” was no more persuasive, saying that under our responsibility to advise and consent, we are “advising” the president not to go forward.

These arguments are of flimsy construction and have been fabricated to support a political conclusion.  They do not pass what one of my law professors called “the layman ‘huh’ test.”  As we students dutifully noted yet one more legal test in our notes, the professor clarified that this one meant if a layman looked at a legal argument and said “huh?” it probably did not pass muster.  So far, only informal online polls are available, but the laymen are saying “huh” to the Republican delay arguments and favor President Obama moving forward with the appointment.

Of course this is only the most recent clash in the war between politics and constitutional process in the appointment of Supreme Court justices.  Beginning with the Senate’s rejection of President Reagan’s nomination of Judge Robert Bork in 1987, politics have been at the center of the process.  One unfortunate consequence is that the premium now is on nominating young candidates with a thin public record, rather than seasoned judges or political leaders, so that they can survive the approval process.  One recent example was President Obama’s nomination of Elena Kagan, a young law school administrator with no judicial experience who had argued only six court cases.  We can and should do better.

Aside from greater political courage, in woefully short supply these days, the only solution I have seen that makes sense comes from two law professors at Northwestern, Steven Calabresi and James Lindgren.  They argue for term limits for Supreme Court justices who, under their approach, would serve staggered 18-year terms, providing for a new appointment every two years.  Pointing out that judges are living longer and remaining in office much longer now, the political pressure on such appointments builds tremendously.  They also point out that no other democracy provides lifetime appointments for judges of their highest constitutional court, and only Rhode Island, among the 50 states, does so.

I rarely think structural reform is a better path than statesmanship and good judgment.  But our present Supreme Court appointment process badly needs fixing.

To view the column at Forbes.com:


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