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Supreme Court Vacancy:
What Would Scalia Do?

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Artist rendering of the late Supreme Court Justice Antonin Scalia.
Image by DonkeyHotey and used under a Creative Commons License.
Would The Late Justice Antonin Scalia Support The Republican Argument To Block President Obama’s Eventual Supreme Court Nomination?


By Wayne Schutsky
Modern Times Magazine

March 9, 2016 — Following the sudden death of Supreme Court Justice Antonin Scalia last month, it took precious little time for politics to take over the subject of who would replace the late judge on the highest court in the land. While President Barack Obama has stated he will nominate a potential new Justice in due time, Senate Republicans have already stated they will hold no confirmation hearings for any Obama nominee regardless of who that is.

Article II, Section 2, Clause 2 of the Constitution deals with Supreme Court nominations and appointments:

“[The President] 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, and all other Officers of the United States, whose Appointments are not herein otherwise provided for…”

So, how are Republican Senators justifying their decision? In an open letter Senate Majority Leader Mitch McConnell, Republicans sitting on the Senate Judiciary Committee argued that while the Constitution gives the President the power to nominate judges, it does not require the Senate to give hearings to those nominees.

“The President may nominate judges of the Supreme Court. But the power to grant, or withhold, consent to such nominees rests exclusively with the United States Senate. This is not a difficult or novel constitutional question. As Minority Leader Harry Reid observed in 2005, ‘The duties of the Senate are set forth in the U.S. Constitution. Nowhere in that document does it say the Senate has a duty to give the Presidential nominees a vote. It says appointments shall be made with the advice and consent of the Senate. That is very different than saying every nominee receives a vote.’”

So, is this interpretation of the Constitution wrong? It’s hard to say. You see, the Constitution is a dense document and many of its edicts can be interpreted in multiple ways depending on the reader’s viewpoint or interpretation.

However, the way the Republican Senators on the Judicial Committee are choosing to interpret this section is confusing because of their previous admiration and support for the late Justice Scalia and his brand of Constitutional interpretation known as Originalism.

What is Constitutional Originalism?

“What [Originalism] purports to mean is you should have the results of Constitutional litigation today come out the way the people who wrote the Constitutional provisions would have decided those same issues at the time that they wrote those provisions,” said Paul Bender, professor of constitutional law and dean emeritus at Arizona State University’s Sandra Day O’Connor School of Law.

So, how would Scalia interpret this conflict? This is obviously impossible to say, but looking at the interpretation of the Constitution that Scalia championed throughout his tenure on the Court gives some insight to how he may have reacted.

From an originalist point of view, it seems that the statements “[The President] shall nominate Judges of the Supreme Court” and “by and with the Advice and Consent of the Senate” leave little wiggle room for an originalist. Nowhere in the text does it say that the Senate may withhold a decision in an election year for political gain. With that in mind, one could make a plausible that argument that Senate Republicans are directly in conflict with the originalism championed by the late Justice Scalia whom they so admired.

In order to bolster their argument, Senate Republicans on the judicial committee also made another argument in their letter to McConnell and in the media, stating that a President making a Supreme Court nomination in a contested election year goes against precedence.

They’re not quite right, but they’re not quite wrong either.

“Presidents have nominated Supreme Court justices in the final year; what happened here is a little unusual in that a justice suddenly died in the middle of a term,” said Bender. “Justices tend to live a long time and they don’t tend to die suddenly, so there really isn’t precedent that I can think of when somebody died suddenly in the middle of a term at the end of a presidential term. But there is absolutely no precedent indicating that the President should not be able to make an appointment at that time. In fact, the Constitution says ‘he shall nominate’ and that seems to mean he should do that. The Senate doesn't have to confirm it, but they ought to take a look at it, and there’s absolutely no precedent for them announcing in advance without even knowing who the nominee is that they won’t even look at them.”

This Republican argument alludes to the so-called Thurmond Rule, an “urban legend of judicial nominations” named after former Senator and noted racist Strom Thurmond that basically states that the Senate should refuse to hear any judicial nominations in the months leading up to an election, according to a fact sheet put out by the American Constitution Society for Law and Policy.

Once again, Republicans find themselves at odds with Scalia’s originalism. Not only is the Thurmond Rule not mentioned anywhere in the Constitution, it is not official in any capacity. McConnell and other Senate Republicans even argued against it when Democrats attempted to block judicial nominations near the end of the presidency of George W. Bush.

No one is arguing that the Senate must confirm President Obama’s eventual nominee (an event that is extremely unlikely); however, it is clear that the Constitution, interpreted from an originalist viewpoint or otherwise, requires the Senate to, at the very least, vet judicial nominees fairly.

However, this whole conflict brings up an even larger question: is originalism the best lens to view this, or any potential constitutional conflict, through? This is an extremely important question to ask because it gets at the heart of the conflict: the reason Republicans are pushing back so hard against an Obama nominee is that they’re hoping to win the White House and replace Scalia with “somebody who is as much a Scalia clone as possible” according to Bender. This would be the first step in achieving a right-dominated Supreme Court that has so far eluded conservatives.

And a court dominated by originalists could have a profound impact on this country.

Alluding back to his previous explanation, Bender refers to Originalism as “complete nonsense.”

“If that were the law, [Brown v. Board of Education] would never have come out that way,” he adds. “If that were the law, women would not have a right to be anything. If that were the law, blasphemy could be a crime. [Originalism] has never been the law, and the reason is that the Constitution isn’t a list of results—you can’t do this, you can do this, you have a right to this,” Bender continued. “There are a couple of provisions that have a fixed meaning like you have the right to a jury trial or the President’s term is four years...But most of the Constitution is principles. The principles don’t change but the way they apply changes a lot.”
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