Two untenable arguments, and one constitutional solution, surround the debate roiling over Justice Antonin Scalia’s successor. One argument, from the Right, is that President Obama is duty-bound, with nearly a year left in his term, not to appoint a successor at all—a claim with no constitutional basis and whose supposed authority in custom is a phantasm. The second, from the Left, is that the Senate’s duty is reflexively to confirm whomever he selects. Yet the Senate is not the executive’s Human Resources Department, confined to checking references and résumés.
The solution is a conflict between two branches of government. This is as it should be. Constitutional conflict is not constitutional crisis. It is, rather, a sign of constitutional health. One almost ventures to say the late Justice would have approved of the proper and consequently rare functioning of the machinery.
Republican presidential candidates who assert Obama should not exercise the prerogatives of his office either disqualify themselves for it—by suggesting they would not defend the presidency—or, perish the thought, traffic in raw opportunism. There is not a candidate among them who would defer an appointment this important.
Nor is there precedent for a President to do so, not with Taft, Wilson, Hoover, Roosevelt and Eisenhower having put justices on the Court in election years, and Johnson having tried but having been reasonably rebuffed.
There was nothing sordid in any of this, nor a sample size—Supreme Court vacancies being already rare, and rarer on a quadrennial cycle—sufficient to form a custom in either direction. Reagan’s appointment of Justice Kennedy (November 30, 1987, inside a year of an election, with confirmation coming in January of the following election year) differs from the others only if the Constitution is so sensitive to the earth’s pattern around the sun, and the Gregorian recording of it, that it was appropriate one day but would have become unprincipled 32 days later.
Nor is there any limit to the argument unless it is a case for three-year presidencies followed by election-year regencies. Should presidents defer all important decisions during campaigns? Trade? Treaties? War and peace? Their consequences, too, endure, and there is no distinction in kind that separates a Supreme Court appointment from them.
The most that can be said of this vacancy is that, for those who seek a limited role for the Court and a robust one for the constitutional text, the timing is profoundly awful. Yet fidelity to the Constitution might also compel acceptance of that and of the fact that the constitutional gears must now be allowed to turn.
But the crucial point is that such fidelity does not compel anyone, especially Senators, to accede to whatever appointment Obama chooses to make. Nominations to the Court are to be made “with the Advice and Consent of the Senate” (emphasis added).
To be sure, the power is located in Article II, not Article I, suggesting it is, in essence, a presidential authority entitled to a degree of deference. Federalist 76 suggests a “silent operation” of the confirmation power to inhibit favoritism and “unfit characters.”
Yet its purpose is also to prevent appointments from “a view to popularity.” Publius speaks, too, in that essay, of “stability,” which suggests the Senate might consider the consequences of an overhaul of jurisprudence at the hands of one appointment that realigns a fragile majority. Similarly, Federalist 77 refers to the confirmation power as a “restraining” and therefore “salutary” one.
This is, in short, a power with teeth. Yet a morality has taken hold that Senators are barred from considering anything other than a nominee’s qualifications, as though members of the world’s greatest deliberative body were the “messenger boys” to which Chief Justice Vinson, in Youngstown, feared reducing the President. This conception sees Senators as personnel clerks who call nominees’ references, perhaps review their credentials, but do not inquire into substantive questions like judicial philosophies.
Yet no one believes Presidents choose nominees without reference to those philosophies, so there is no reason to expect Senators to confirm them without asking the same questions. That does not mean “Borking,” which, properly understood, entails distorting a nominee’s record and attempting to destroy his or her character. It means asking honest questions and deliberating in an intellectually rigorous fashion. It also means some qualified nominees, even distinguished ones, will be rejected because the Senate disagrees with their constitutional ideas. So be it; distinguished people are turned away from the other branches all the time. There is no civil right to confirmation to the Supreme Court.
That the President is thus entitled to nominate and the Senate to reject would mean an immense constitutional conflict in the offing. So much the better; let the First Branch acquire the taste. That we so reflexively shrink from conflict—and so quickly escalate it, when it occurs, to “crisis”—is evidence of how much we have forsaken a foundational element of the regime.
But it is important, for their sake and for civic education, that the constitutional players enact the scene rather than dodging their own responsibilities by demanding that the opposing side abandon its. Filibusters and outright rejection all are fair game for those who can—as they should—accept them as precedent when others hold the reins. But go through them. Make the political argument; on either side, take, where they come, the political hits. In either case, the claim that the Senate must confirm is as indefensible as that the President must not appoint.
A failure to confirm a nominee would also mean the coming campaign would almost certainly revolve in substantial part around the future of the Court. How candidates address that—whether they, for example, have the sense of constitutional propriety not to promise nominees with such specificity that November becomes a proxy election for the Court—will itself be a test of their fitness for the White House.
But it will also push them, and the public, into constitutional conversation. Candidates will have to delineate clear philosophies of the Constitution and the Court. That is a positive good. Madison said all three branches of government derived ultimately from the people. For constitutionalism to be forced as a topic into presidential and Senate campaigns would not be the worst outcome of an otherwise tragic event.