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Complicating Greg Weiner’s Take on the Nomination Imbroglio

Greg Weiner argues, in a much-discussed Law and Liberty post, that “constitutional conflict is not a sign of constitutional crisis. It is, rather, a sign of constitutional health.”

However, if this is the case, why are Americans so quick to do exactly what Weiner argues is deeply problematic for our constitutional order: namely, elevate disputes between the branches to the level of crisis rather than seeing them as the generator of substantive arguments on behalf of institutional and partisan positions?

This question is best answered by adding a complication to Weiner’s account: that the kind of substantive conflict he envisions is undermined by a legalization of separation-of-powers disputes, bringing on what could be called the paradox of the separation of powers. This paradox, I would argue, distorts the Framers’ constitutional design, but the distortion flows from the textual resources of the Constitution.

Because of the mixed nature of the Constitution as a legal and a political document, actors in each of the two political branches have the ability to latch on to legal (or constitutional) arguments regarding their powers vis à vis the other branch. Weiner demonstrates the extent to which the major political parties have recurred to constitutional arguments upon Justice Scalia’s passing, with the Republicans arguing (unpersuasively) that prudence requires waiting until after the election before a replacement is nominated, and the Democrats arguing (falsely) that the Constitution requires that the Senate approve whomever the President nominates. (See, for example, Senator Elizabeth Warren’s comments on the matter.)

The legalization of the dispute is perhaps made more evident by the Democrats’ insistence that the Constitution dictates a specific response by the Senate to the President’s judicial nominations.

The Republican position, by contrast, looks political: the people’s choice in the impending presidential election should guide the nomination. But this view doesn’t contest the legal understanding of the roles of the branches in regard to each other that is advanced by Democrats. Rather, it just shifts substantive deliberation to the voters in an election, when that deliberation ought to take place in the U.S. Senate. Indeed, Senate deliberation in advance of the election would aid citizens as they cast a ballot, openly displaying the issues at stake. The Republicans do not argue that the election will then structure robust debate, only that it will decide the issue, thus also suggesting a legally determinative relationship between the branches regarding appointments.

The problem with such legalized arguments is that, first, they treat the Constitution as being legally determinative of constitutional outcomes when they most certainly are not.

For example, reading the Constitution’s provisions in Article II Section 2 tells us that the President “shall nominate and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the Supreme Court.” While this tells us who does what, it does not tell us anything about timing or even what considerations ought to be most important for the two political branches. For example, it doesn’t tell us whether or not the Senate must approve, only that the Senate must approve a person who takes his or her seat on the Court. While Senator Warren said she searched in vain for a constitutional clause that could support the Republican position, were she intellectually honest she would also find that her own position is similarly undermined by this legalistic reading of the Constitution.

The Constitution, on the other hand, legally structures a political process by which the President and Congress can ultimately resolve substantive disputes—as well as disputes about the nature of their respective powers—without dictating a legally settled outcome. There is flexibility, as settlements to these disputes can thus be unsettled as they are contested over time.

Madison makes this clear in Federalist 37:

Experience has instructed us that no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces the legislative, executive, and judiciary; or even the privileges and powers of the different legislative branches.

Madison further argues in Federalist 48 that the problem with the states’ practice of separation of powers was that they assumed that “mere parchment barriers” could restrain the encroachment of any of the branches over the others.

The Framers’ approach, therefore, was not to legally determine the outcomes of inter-branch disputes by specifically assigning powers with the prolixity of a legal code, but, as Madison argued in Federalist 51, to give each branch the constitutional will and means to defend its institutional prerogatives, those prerogatives themselves shaped by the structural capacities of the branches.

The second problem with legalizing political disputes is that it disguises the political motivations undergirding the dispute in the first place, preventing a substantive engagement on those issues. This is problematic even if ordinary citizens aren’t fooled by the pretense.

Hence, while Republicans and Democrats contest the appropriate use of executive and legislative powers in the appointments process, the real nature of this dispute is about what kind of jurist— and what type of judicial philosophy—these political actors want to see on the High Court. While the dispute over the powers of the branches itself results in a kind of institutional conflict over constitutional interpretation, it can hardly be described as a sign of constitutional health if this conflict only serves to obscure the deeper political questions at the heart of the current clash.

Weiner seems to assume that as this face-off continues, the more substantive disputes that animate the current “crisis” will enter the picture. But why should we necessarily assume that? If one side can make a persuasive argument about its legal position, then it has an incentive not to engage in a political debate where its position is more open to legitimate contestation.

And so I give two cheers to Weiner’s call for a more conflictual constitutionalism by which substantive political problems can be resolved. My reason for withholding the third cheer is my worry that this legalizing of the matter by political actors prevents the kind of contestation that a healthy constitutional polity requires. In fact, waxing legalistic about it, as the members of Congress and presidential candidates have done, is what makes the idea of a separation-of-powers conflict seem so unappealing, and thus so likely to be treated as, or at least characterized as, a crisis that threatens our constitutional order.

Indeed, the legal posturing leaves little, if any, room for compromise, making politics seem like the wrong approach to settling disputes while also raising the stakes for the political actors involved. Not a good combination.

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