Conflict Is the Health of Our Constitution

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.

Reader Discussion

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on February 16, 2016 at 10:39:34 am

This tragic event is the people’s immediate concern, but too many of We the People of the United States are neglectful to collaborating for civic justice, as urgently as they earn their living, in order to have personal liberty.
As an agent for A Civic People for the United States, I urge citizens to consider their constitutional responsibility to weigh the nominee by the President in terms of past records: Did he or she strive to meet the goals stated in the literal preamble to the constitution for the USA or did he or she create a biased record?

For the sake of propriety, I urge citizens to interpret the nine goals in the preamble according to the essence in 1787 but for 2016 living--goals they personally trust and commit to. For example, the phrase, “a more perfect Union,” is appropriate for the original thirteen states, but not so much for the precious diversity this country has nourished and enjoys. I prefer “integrity” to “union” in that essence, where "integrity" has both meanings: doing the noble work necessary to form a well-grounded position and collaborating for a culture of a civic people.

Also, the nominee should have a record of recognizing that traditions like legislative prayer are divisive to the goals of the preamble and thus to the entirety of the constitution for the USA.

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Phil Beaver
on February 16, 2016 at 13:11:17 pm

Did these nine goals come from physics? Was it a Big Bang sort of creation that provided us with these goals?

And let their not be ANY prayer for surely it would erode the entire Constitutional edifice!!!!

will someone please forward the above comments to the Senate Judiciary Committee; they await such sagacious commentary quite anxiously!

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Image of gabe
on February 16, 2016 at 13:55:13 pm

Since there has been so much concern with "Orginalism," let us look at the fact that there is not one, but are, two words, specifying the function of Senate action in the matter of " Judges of the Supreme Court."

The word overlooked is "by," which reads BY the advice and by the consent of the Senate.


BY the advice and with the consent of the Senate.

Art. II Sect 2. appears silent as to how that "advice" shall be given; consent seems to require a vote on a determination.

Now, if a sufficient majority (see, Senate Rules) of the Senate, provide advice to the President to defer nominations, whether by formal resolution or by inaction, that advice would seem controlling.

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R Richrad Schweitzer
on February 16, 2016 at 14:22:19 pm

We should probably also consider whether the use of "BY" is intended to mean "in accordance with."

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R Richard Schweitzer
on February 16, 2016 at 15:26:53 pm

"He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court,...."

Perhaps this is nothing but - who can help me here:

Notice that in the "treaty clause" it is "by and with...." but in the appointments section it is: "and he shall nominate, AND by and with...."

Why is this so worded and what, if anything does it signify?

Is there an intended greater emphasis on Senatorial action / consent?
Is there an intention that the Senate is to play a more emphatic role in such appointments?
Is the Senate placed on a more equal footing with the President in these appointments?
Is (there was actually some such discussion) there an intention for the Senate to make clear its *prior* advice? Washington actually sought out such advice prior to nominations, while others would neither deem it mandatory nor rule it out?

Just curious. does the added "and" signify anything?

Clearly, it is not a substitute for "or" - it is conjunctive not disjunctive!

Also, could it be a recognition of the rather different role that the Senate as an institution was expected to play in the original scheme of the Republic - that of *States Diplomats* whose consent to an appointment could have significant implications upon the Senators "diplomatic constituents"?

Again, just wondering and freewheeling, here!

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Image of gabe
on February 16, 2016 at 15:27:25 pm

I never really thought about that before.

"... and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ..."

Is that the same as saying "by the advice and with the consent" or "by and with the advice and by and with the consent"?

Am I understanding this correctly? If the senate does not advise, the president cannot nominate because his nomination is predicated on the advice. Perhaps the Framers intended for the senate to provide a list of candidates for the president to chuse from.

Perhaps Adams and Jefferson can help us straighten this out. They seemed to have handled this kind of thing quite expeditiously.

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Scott Amorian
on February 16, 2016 at 17:26:03 pm

Physics. The final frontier.

These are the adventures of the Starship A Civic People for the United States.

Its interminable mission:

To explore strange, half-baked but not so new notions;

To seek out the same old people at Liberty Lawsite to hector with silly, poorly-thought-through nostrums, appended to blog posts to which they are not relevant;

To boringly lecture the same unwilling audience Phil lectured the day before.

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Image of djf
on February 16, 2016 at 17:30:00 pm


Interesting here. This may be a case where your notion of a "Council" was actually put into effect by the Framers.
No, I don't think that the president cannot nominate w/o advice BUT it seems clear that the Framers thought it proper that the "council" of the Senate would provide such advice. It is not clear that it must be pre-nomination but Washington did so, as did some others even, if i recall correctly in my own lifetime (Reagan, Nixon (see Haynesworth or the "mediocre" guy). So maybe the arguments that were advanced at Philadelphia for "counsel" found their way into the constitution after all.

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Image of gabe
on February 16, 2016 at 17:55:28 pm

Perhaps the original intent was that the president cannot nominate without advice, and the current practice is yet another usurpation. But I would image that this has been officially debated already and right or wrong what we have now is what we have to live with.

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Scott Amorian
on February 16, 2016 at 18:41:45 pm

Yep - re: "current practice" or as Justice Scalia said in a talk on economic rights "right or wrong, it is what it is" - more's the pity!

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Image of gabe
on February 16, 2016 at 18:43:43 pm

Yes, but i can not tell from the picture, as the ears are not prominent in the image, whether we have Kirk or a *would-be* Spock!

Nevertheless, the voyage apparently continues!!!

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Image of gabe
on February 16, 2016 at 23:13:39 pm

That sect says He shall have the power *and shall* nominate.

If it said only He shall have the power to nominate, exercise of the power becomes optional.

Historically (and for political reasons) Presidents have sought the advice of senators concerning judicial appointments. These "explorations" have extended just far enough to determine what is possible in the whole Senate.

Still works for submissions for District Court Judges.

So far, at the SCOTUS level, the giving of "consent" infers "by the Advice" has been had in the nomination. That has not been so at the District (and perhaps at the Circuit) level.

Still, "What "BY" means remains an open question.

I am satisfied that I "quit" a bit over 25 years ago.

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R Richard Schweitzer
on February 17, 2016 at 14:18:54 pm

"BY" would appear to make it incumbent upon the President to take thier "damn" advice. Ha!!!!

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Image of gabe
on February 17, 2016 at 19:29:04 pm

I do not understand the suggestion that the President cannot lawfully nominate without the advice and/or consent of the Senate. It seems to me that the word order--“… and he shall nominate, and by and with the advice and consent of the Senate, shall appoint …”--leaves his power to nominate uncontrolled, and only subjects the appointment power to the "advice and consent of the Senate."

If the intention were that nomination shall only occur with the advice of the Senate, then it should read "by the advice and consent of the Senate, he shall nominate and appoint..."

Am I missing something?

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Someone or Other
on February 18, 2016 at 11:50:41 am

I don't think anyone is arguing that he cannot nominate w/o A&C of Senate; only that it may have been "expected" that he should seek such counsel, as in fact some presidents have done.

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