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.

Reader Discussion

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on February 18, 2016 at 10:55:03 am

Thoughtful essay; I'm mulling it. But a quibble:

[T]he 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.)

I don't see where Warren (or any other Democrat, for that matter) says that the Constitution requires that the Senate approve whomever the President nominates. If anyone has support for this proposition, I'd like to see it.

Rather, Warren says, "Senator McConnell is right that the American people should have a voice in the selection of the next Supreme Court justice. In fact, they did — when President Obama won the 2012 election by five million votes."

In summary: McConnell claimed that in performing its advise and consent role, the Senate should take direction from the American voters in the presidential election. Warren merely calls McConnell's bluff: Great -- the American people elected the CURRENT president, so if McConnell sincerely believed his own rhetoric, then ....

Admittedly, Warren's language isn't specific there. Given the context, I surmise she means, "then you wouldn't advocate stonewalling."

I guess it would be possible to read it to mean "then the Senate should rubber-stamp whoever a president nominates." But recall that Warren is adopting McConnell's reasoning: "McConnell is right...." So to read Warren's language this way, you'd have to start with the premise that McConnell was advocating that position as well. Anyone acquainted with McConnell would be unlikely to draw that inference.

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on February 18, 2016 at 12:00:07 pm

"Because of the mixed nature of the Constitution as a legal and a political document . . ." Bell

Shall we follow the academics for whom ALL subjects are "Political?"

Are ALL (public) documents "political" in some perspective or perception?

If not, how can we conclude the Constitution, though generated and composed in a "political" context and from "political" experience, to be the Supreme Law of the Land is anything other than a LEGAL document.

There are, in Western Civilization, many "political" documents; The Declaration of Independence, The Communist Manifesto, etc. of wide impacts; but they are not "legal" documents - Constitution is.

That the Constitution has been considered anything else, or a combination with anything else is a major source of the impairments of individual liberty.

Mr. Bell's choice of expression is precisely counter to the judicial efforts, logic and rhetoric of Antonin Scalia.

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R Richard Schweitzer
on February 18, 2016 at 12:07:26 pm

Amazing, isn't it how the parties recourse to Constitutional validity seems to apparently shift with the prevailing political winds (needs?).

McConnell is foolish for claiming that the American people should decide; Warren is a hypocrite for her assertions as her party is notorious for doing precisely that which she now criticizes.

The above essayist is correct that this is a *political* issue; it was intended to be resolved politically by the Framers; the institutional structure and roles as defined by the Constitution not only permit, but encourage, a political solution. Being true to their institutional incentives, the Senate ought to do as the Senate deems appropriate, within constitutional outlines - be that political - so be it!!

That being said, I would not agree with the statement:
"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 "

This would seem to assume that the purpose of the constitution is to "illumine" (as opposed to obscure) deeper political questions. I have not come across the "illumine" clause (although I suspect some readers will call up the Illuminati, or some such silliness) in my copy of the document.
"Health" in this instance is not necessarily a function of how well published are the "deeper questions."
Perhaps, we could argue that "cultural" societal health may be at issue.

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Image of gabe
on February 18, 2016 at 15:36:25 pm

"... why are Americans so quick to ... 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?"

It is because the Constitution as it is used today creates a populist (tyranny of the majority) system; in contrast to its original intent which was to create a republic of conscience, moderated by a non-populist senate.

What we have is government-by-popularity-contest where the parties involved try to influence our statistically average voter to choose one way or the other, or at least to not choose to stop it. Our statistically average voter is of average brightness and doesn't keep close track of politics. Government, in contrast, is very complex and requires a high degree of political knowledge. It requires professional specialists to make good decisions, not amateurs. What we have is government direction of the amateurs, by the amateurs, and for the amateurs. Naturally, we end up with government that makes quite a lot of consequential amateur mistakes.

The constitutional conflict is both by the design of the operation of the branches (which Weiner is correct about), and by the conflict between our actual populist and our theoretical conscientious theories of government.

It's not a difficult thing to understand.

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Scott Amorian
on February 19, 2016 at 10:04:52 am


" It requires professional specialists to make good decisions..."

I prefer your earlier formulation in which virtue is the principal requirement. One can be a specialist in X,Y, or Z but still mess things up. "Specialism" seems almost Wilsonian.

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on February 19, 2016 at 15:38:40 pm

Specialism, Gabe, is one of the cornerstones of our form of government. When we send representatives to government, we look for people who can do the job well. A poor selection process brings representatives to office who lack requisite skills to serve in office. I can think of at least one recent famous American politician who went into the highest executive office with no previous executive experience. He lacked in special skills. The presence in office of the famous politician proves how bad our election process is, and how much it needs reform. The current herd of megalomaniacs and radical ideologues who are the front-runners for president contributes to the proof.

The Pluralist voting method we use to select representatives is well know by the folks who study such things as being one of the worst methods for electing good candidates.

The Pluralist methods allows us to choose candidates who have qualities we want, but it doesn't allow us reject candidates who have negative qualities we don't want. Both positive and negative criteria must be applied, otherwise the choice is a farce and you end up with electees grossly lacking in the special skills required for office or electees having negative characteristics that otherwise makes them unsuitable for office.

Once the unsuitable electees are in office, and they are authorized to appoint other officeholders, the other officeholders also tend to be lacking in the special skills required by the office. That is the struggle with the upcoming supreme court appointment. The problem of poor selection spreads through government like a cancer, since there is no effective filter to keep bad candidates out.

Sorry, but the party system and the checks and balance system are not effective at ensuring the skilled people get appointed to office. The proof of that lies in the pudding. Those checks reduce the corruption somewhat, but they don't stop it substantially enough.

The Federalist Papers are rich in discussion of the importance of having representation by people with special skills and characteristics, and I would refer you there.

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Scott Amorian
on February 19, 2016 at 19:19:18 pm

I am well aware of the Federalist Papers call for "virtue" and a natural aristocracy; that, is however, somewhat different than "specialists."
All of what you say above may be true - yet it is still wilsonian in thrust and content and it represents an arrogation of power by and to en elite class of "trained specialists" It is these specialists who write our rules and regulations, who dictate to the American people what they may or may not do, own or sometimes think or speak.

Better to elect some fools (as we most certainly have done in recent years) than to take from the people the chance to make a mistake AND EVEN POSSIBLY GET IT RIGHT.

But yes proper representative governance does require that elected officials possess certain skills - but, just to be clear - these are not skills of *technique* but of "politics" properly understood!!!
So perhaps, we are simply viewing different functions / institutions of government when assessing the "value" of skills.
Let us leave it at that!

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