The opening words of the Preamble to the United States Constitution are familiar to us all: “We the People.” But what exactly do they mean?
It was by “the People” that the Constitution was written and ratified. It is for “the People” that my colleagues and I, along with every other public official across these United States, now serve. And it was on behalf of “the People” that the Constitution established “one supreme Court,” consisting of judges appointed “by and with the Advice and Consent of the Senate.”
Since the tragic passing of Supreme Court Justice Antonin Scalia, there has been a great deal of debate about this particular provision of the Constitution.
But there should be no controversy. The text of our founding charter is clear: The president has full and complete power to nominate individuals to the Supreme Court, and the Senate has full and complete power to confirm nominees or to withhold consent.
It’s as simple as that. Indeed, the Senate retains complete discretion with respect to whether it should even consider – much less accept or reject – presidential nominees.
This should not be controversial. It is how virtually every student of the Constitution – and nearly every member of Congress – has understood the Senate’s power of “Advice and Consent” for the past 228 years since the Constitution was ratified.
But now, with the presidential election in full swing, President Obama and his allies in Congress and the media claim the opposite is true. As they tell it, the Senate is constitutionally obligated to hold hearings and to vote on the candidate that President Obama eventually nominates to replace Justice Scalia on the Supreme Court.
I respectfully dissent.
"It’s as simple as that. Indeed, the Senate retains complete discretion with respect to whether it should even consider – much less accept or reject – presidential nominees."
If this a-textual and a-historical account of the Constitution were accurate, then prior Senates violated the Constitution when they did not cast up-or-down votes on Supreme Court nominees. Even the Standing Rules of the Senate would be suspect, contemplating as they do that “[n]ominations neither confirmed nor rejected during the session at which they are made shall not be acted upon at any succeeding session without being again made to the Senate by the President...”
Neither does the prospect of a temporary eight-member Court raise concern. For instance, during the Court’s 2010-2011 term, the Court decided over 30 cases with eight or fewer justices, almost entirely as a result of recusals arising from Justice Kagan’s nomination. Similarly, following the retirement of Justice Powell in 1987, the Court acted on 80 cases with eight or fewer justices.
In short, the sky does not fall when the Court comprises only eight justices. As Justice Breyer recently stated, the work of the court “[f]or the most part...will not change.”
With the future of the Supreme Court now at stake, and the election for our next president already well underway, it is the People who should determine what kind of Supreme Court they wish to have. The president is entitled, of course, to discharge his own constitutional authority to nominate. But the Senate is equally entitled to withhold consent and protect the People’s voice.
As James Madison wrote in The Federalist Papers, ambition must counteract ambition. And the People should decide.