Posted on 02/14/2016 7:18:44 PM PST by Daniel Clark
What Would Scalia Say?: No reason Obama shouldn't appoint
by Daniel Clark
"Elections have consequences." President Obama once said that, and yet it's true. One might have hoped we'd all have learned it by now.
The consensus among the candidates at the South Carolina Republican Primary Debate was that Obama is somehow obligated to abstain from appointing a successor to the late Supreme Court Justice Antonin Scalia. Their basis for this argument is that it's a tradition that a president does not make a Supreme Court appointment during an election year, especially when that appointment would dramatically change the Court's ideological makeup.
Well, actually, it's not something that's not traditionally done so much as it is something that simply doesn't come up very often. Whatever the case, the claim has no constitutional basis. Article II Section 2 says that the president "shall appoint" Supreme Court justices "by and with the Advice and Consent of the Senate." This empowers the Senate to reject a particular appointee if it wishes, but it does not allow that body to preemptively deny the president the ability to make an appointment. The idea that the phrase "shall appoint" could be interpreted as "may appoint, unless otherwise bound by some nebulous political tradition" is the kind of anti-constitutional reasoning that the famously caustic Scalia would regularly lampoon in his dissents.
The Republicans are sounding less like Scalia than they are like Obama, who often invokes imaginary, unwritten contracts to which he subordinates the Constitution. Surely, most of them know better. The time to take a stand is not before the president has exercised his constitutional duty to appoint a justice to the Supreme Court, but when the time comes for an up-or-down Senate confirmation vote on a specific appointee. If that appointee disdains the written law, as liberals tend to do, then the nomination must be defeated.
What conservative senators like Ted Cruz and Marco Rubio understand, however, is that their colleagues lack the will to wage that battle. They know that any nominee Obama sends them is going to be an affront to the Constitution, but that a certain number of invertebrate GOP Jellyphants will vote for confirmation anyway. In 2009, the Senate was presented with a video of nominee Sonia Sotomayor openly declaring that it is the role of the judiciary to create law. Nevertheless, she now sits on the Supreme Court, where she may poison American jurisprudence for decades to come, with the blessing of nine Republican senators.
The Jellyphants are constantly aquiver at the prospect of provoking a government shutdown, an event that has never been known to have any electoral consequences. They consider Cruz to be a dangerous zealot, just because he promotes legislation that Obama would be inclined to veto. How much wobblier will they become when faced with an election-year Supreme Court nomination fight?
Not only have they shirked their responsibility to stop Obama's two previous Supreme Court appointees from being confirmed, but they've gone along with, and even praised, his appointments of dangerous left-wing authoritarians like former attorney general Eric Holder, former education secretary Arne Duncan, and "science czar" John Holdren. If they were unwilling to resist Obama in lower-profile cases like those, they’re not about to invite media criticism by opposing him while the whole nation is watching.
It's totally understandable that conservatives would want to avoid that scenario, but their assertion that Obama is bound by tradition to thwart his own nomination is constitutionally unsupportable. Furthermore, it lacks any mechanism to compel the president's cooperation. All he has to do is to say no, and appoint a nominee anyway, and he'll have made the whole field of Republican presidential candidates look like a gaggle of irrelevant pipsqueaks. What masochists they must be, to have voluntarily given him the power to do that to them.
That the candidates would present this peculiar demand as if it were a defense of Scalia's principles is sadly ironic. Scalia was the champion of the judicial philosophy known as originalism, by which the law should be interpreted according to the original intent of its authors. There is absolutely no evidence that it was our founders' intent that the president abrogate his responsibility to appoint a justice to the Supreme Court, just because a vacancy has arisen under politically volatile circumstances.
If the Republicans really want to pay their respects to Justice Scalia, they will kindly stop doing the very thing that he had fought against his entire life, which is simply making something up that they wish to be in the law, but isn't.
-- Daniel Clark is a writer from Pittsburgh, Pennsylvania. He is the author and editor of a web publication called The Shinbone: The Frontier of the Free Press, where he also publishes a seasonal sports digest as The College Football Czar.
I think Daniel Clark is just a post-bot.
I agree, I honestly don’t know either.
It was said, that he asked for Kagan. I wasn’t there and sure do not trust the ‘saidee’, Axe(to grind)lrod. Think he may have an agenda.
Wish they all would be more Constitutionally inclined.
Take care.........pilgrim
You too. And I agree I wish they were all Constitutionally inclined. If that were the case, we would not have to wait until the election to have another justice on the court. If Obama was reasonable and understand a conservative died so a conservative should be the replacement. I know that Presidents have done that before.
Your opinion piece should have been posted in Blogs, not News.
btw - I disagree
It’s all spelled out in the, “penumbras and emanations” clause of the constitution. Right there after the, “phone and pen” section.
S.RES. 334. EXPRESSING THE SENSE OF THE SENATE THAT THE PRES. SHOULD NOT MAKE RECESS APPOINTMENTS TO THE SUPREME COURT, EXCEPT TO PREVENT OR END A BREAKDOWN IN THE ADMINISTRATION OF THE COURT’S BUSINESS. KEATING MOTION TO RECOMMIT TO JUDICARY COMM.
Dems in Senate passed a resolution in 1960 against election year Supreme Court appointments
By Thomas Lifson
Read it and weep, Democrats. The shoe is on the other foot. David Bernstein at the Washington Post’s Volokh Conspiracy blog:
Thanks to a VC commenter, I discovered that in August 1960, the Democrat-controlled Senate passed a resolution, S.RES. 334, Expressing the sense of the Senate that the president should not make recess appointments to the Supreme Court, except to prevent or end a breakdown in the administration of the Court’s business. Each of President Eisenhower’s SCOTUS appointments had initially been a recess appointment who was later confirmed by the Senate, and the Democrats were apparently concerned that Ike would try to fill any last-minute vacancy that might arise with a recess appointment.
The GOP opposed this, of course. Hypocrisy goes two ways. But the majority won.
As it should this time.
S.RES. 334. EXPRESSING THE SENSE OF THE SENATE THAT THE PRES. SHOULD NOT MAKE RECESS APPOINTMENTS TO THE SUPREME COURT, EXCEPT TO PREVENT OR END A BREAKDOWN IN THE ADMINISTRATION OF THE COURT’S BUSINESS. KEATING MOTION TO RECOMMIT TO JUDICARY COMM.
Obama can nominate anyone he wants. There is no reason that the GOP has to roll over and confirm him/her.
It sure is fun putting words into the mouth of a dead man!
Hope your are right RW71!!!
If the pResident does appoint someone, do not think the Senate has enough or really any backbone to object, if past behavior is any indicator they will throw a ‘hissy fit’ for the voters then acquiesce to him!
Pray you have it pegged correctly!!
AMEN!!!
Now days the oath taken means nothing.
Thanks!
Take care.........pilgrim
The Constitution gave to the Senate the power of advise and consent. It does not specify in any manner how that power should be exercised. I suspect as a matter of policy, he might have opined that the Senate refusing to confirm judicial nominees is a perfectly valid -- and completely Constitutional -- means of opposition to executive overreach, including the failure of the President to take care that the laws are faithfully executed.
http://video.foxnews.com/v/1760716797001/supreme-court-justice-scalia-sits-down-with-chris-wallace-on-fox-news-sunday/?#sp=show-clips
Stand corrected!!!
One does not “throw ad hissy fit” one “pitches a hissy fit!!!”
Sorry!! :)
I think that is important enough that I bookmarked it earlier.
Come on boys, show some backbone.
If this guy wasn’t an out and out traitor, I’d say take our lumps.
We’ve given this scumbag every break in the book. Enough already.
We don’t need to sacrifice the nation on the alter of the almighty _resident Obama.
SHALL appoint in the Constitution trumps any and all Senate “Resolutions”. Which ain’t really worth the paper they are printed on.
The Senate can and sometimes (very rarely) reject a nominee. I am sure back in the distant past a Republican Senate rejected a Democrat president’s Supreme Court nominee, but for the life of me, I cannot remember even one.
However I do agree with the article, the late Justice Scalia would want ALL of them, the Court, President and Senate to follow the Constitution. TO THE LETTER.
We may not like it, but it is there. As the writer says, we should follow the what the Constitution says, not what we want it to say.
The Senate doesn’t have to consent until Obama comes up with a decent judge. We’ll end up with a Sandra Day O’Connor only if we’re extremely lucky.
ComDem can pound sand.
If the GOPe gets weak in the knees, we’ll deal with them.
Questions to Mr. Daniel Clark.
Are you prohibited in any way on replying to posts, replied to your post?
Or do you just sit back and watch to see, what the response is to your article?
Are paid by hits on your posts at the websites you contribute to?
Or do you get ideas from replies to your post and use them in future articles?
Just wondered.
It was totally unsurprising that President Obama said that he would nominate a new justice.
It’s his and the Democrats political choice to do so, and also the Republicans’ political choice to say he shouldn’t and to work against any nominee.
Look how the Dems opposed Robert Bork.
Given the circumstances, Republicans have every right and duty to fight against any new justice that Obama would like to put on the Court.
And right off the bat, Republicans have a very good argument against anyone being nominated: that it is too much for the nation to tackle at the same time, giving that both the justice battle and the Presidential battle will be occurring at the same time.
Republicans also have a mandate to fight any Supreme Court nominee because this isn’t Obama merely replacing another liberal justice, but would involve the balance of the court possibly changing.
The left would fight this tooth and nail, along the lines of a battle cry of, “we have to do whatever it takes to stop the fascists from taking control of the Supreme Court!”
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