Alexander's Column

SCOTUS — Better Obstruction Than Destruction

"With the advice and consent of the Senate"

Mark Alexander · Feb. 17, 2016

“Be not intimidated … nor suffer yourselves to be wheedled out of your liberties by any pretense of politeness, delicacy, or decency. These, as they are often used, are but three different names for hypocrisy, chicanery and cowardice.” —John Adams, 1765

On Tuesday of last week, Justice Antonin Scalia joined the Supreme Court majority staying EPA regulations proposed by Barack Obama for his so-called “Clean Power Plan.” That plan was just the latest SCOTUS objection to Obama’s extra-constitutional efforts to bypass Congress and impose his will by regulatory fiat instead of legislation.

On Tuesday of this week, in the wake of Justice Scalia’s death, Barack Obama’s United Nations climate envoy declared that Obama would ignore the High Court’s ruling against his “climate change” agenda and, moreover, ignore the Constitution’s mandate requiring “Consent of the Senate to make Treaties” — as specified in Article II, Section 2, Clause 2 — by signing the UN Climate Treaty.

That announcement was followed by Obama’s protests against Senate Majority Leader Mitch McConnell’s assertion that “the American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.” Obama claims McConnell is an “obstructionist,” insisting “the Constitution is pretty clear about what is supposed to happen here,” and declaring Republicans are violating Article II, Section 2, Clause 2 mandating the “Consent of the Senate to appoint … Judges of the supreme Court.”

Indeed, the Constitution is clear, and there is nothing “obstructionist” about any Republican measure to extend this appointment to the next president.

Laughably, Obama offered this assessment of constitutional mandates: “These are responsibilities that I take seriously as should everyone [and are] bigger than any one party. They are about our democracy [sic], and they are about the institution to which Justice Scalia dedicated his professional life in making sure it continues to function as the beacon of justice that our Founders envisioned. I’m amused when I hear people who claim to be strict interpreters of the Constitution suddenly reading into it a whole series of provisions that are not there.”

However, McConnell is not proposing anything that would be in violation of Article II, Section 2, Clause 2.

On the other hand, while Obama’s tenure in office has been characterized primarily by ineptitude, a close second would be his persistent and abject violation of his oath “to Support and Defend” our Constitution, and his willful defiance of Rule of Law whenever Congress fails to do his bidding.

Within hours of Justice Scalia’s death, Democratic National Committee CEO Amy Dacey broadcast a nationwide email alert, declaring, “Barack Obama has been very clear: He’s going to fulfill his constitutional obligation and nominate our next Supreme Court justice.”

Why now? Obama certainly hasn’t “fulfilled his constitutional obligations” in any other respect.

Taking Obama’s lead, there were plenty of other Democrats making laughable references to our Constitution.

Senate Minority Leader Harry Reid opined, “This constitutional duty has transcended partisan battles because it is essential to the basic functioning of our co-equal branches of government. By ignoring its constitutional mandate, the Senate would sabotage the highest court in the United States and aim a procedural missile at the foundation of our system of checks and balances. Our founders who envisioned a fair, bipartisan process must be rolling in their graves.”

This would be the same Harry Reid who, while Senate majority leader, implemented the “nuclear option” allowing the confirmation of judges (but not justices) by a simple majority vote, effectively eliminating the constitutional provision for filibuster.

Vermont’s Patrick Leahy, the top Democrat on the Senate Judiciary Committee, held up a copy of the Constitution at a press conference and complained, “Republicans are talking about the Republican playbook. … This is the playbook we should follow, the Constitution of the United States.” Clearly, Leahy’s copy has never been opened.

Not to be outdone, Democrat wildcard Elizabeth Warren got into the act: “Article II Section 2 of the Constitution says the president of the United States nominates justices to the Supreme Court, with the advice and consent of the Senate. … Senate Republicans took an oath just like Senate Democrats did. Abandoning the duties they swore to uphold would threaten both the Constitution and our democracy [sic] itself. It would also prove that all the Republican talk about loving the Constitution is just that — empty talk.”

Empty talk indeed from another protagonist of the Socialist Democratic Party who has never honored her oath.

So what does the Constitution actually mandate regarding court nominations, and are the Republicans in violation of same?

Article II, Section 2, Clause 2 states, “[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.”

In other words, in regard to the federal court nominees, the president is required to submit a nominee to the Senate for its approval or rejection.

To better understand what that means, I turn to The Federalist Papers, written by James Madison, Alexander Hamilton and John Jay to promote ratification of the Constitution. The Federalist remains the most definitive resource for legal and historic scholars in search of the original intent of the Framers of our Constitution.

Federalist No. 76 covers the “Appointing Power of the Executive”:

“The President is to nominate, and, by and with the advice and consent of the Senate, to appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not otherwise provided for in the Constitution. … To what purpose then require the co-operation of the Senate? … [T]he necessity of their concurrence would … be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters. … It will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entire branch of the legislature.”

Federalist No. 77 also addresses appointments:

“It has been mentioned as one of the advantages to be expected from the co-operation of the Senate, in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as to appoint.”

In other words, as understood in 1787 and today, Article II, Section 2, Clause 2 provides that the legislative branch (the Senate) has a check on the executive branch (the president) with the objective that the executive not pack the judicial branch (the Supreme Court) with those who would share his prejudices and special interests, rather than abide by Rule of Law as enshrined in our Constitution. The Senate Consent requirement provides some nominal assurance against the threat of prejudicial and special interests nominees.

The principle of separation of powers necessitates that the appointment of judges requires a collaborative effort by the executive and legislative branches. The Senate can either approve or reject an Obama court nominee by scheduling votes in the Judicial Committee and the full Senate, or defer consideration of that nomination by not scheduling votes by either the committee or the full Senate.

As constitutional scholar John McGinnis notes:

“The Senate has independent authority in that it may constitutionally refuse to confirm a nominee for any reason. While ideology and jurisprudential ‘point of view’ were not among the kinds of concerns listed by the Framers as justifying the requirement of advice and consent, nothing in the text of the clause appears to limit the kind of considerations the Senate can take up. … As the president has complete discretion in the use of his veto power, the Senate has complete and final discretion in whether to accept or approve a nomination.”

It is the responsibility of the president to nominate, and the Senate to approve, only those judges who will interpret our Constitution’s original intent. As James Madison wrote, “An elective despotism was not the government we fought for; but one in which the powers of government should be so divided and balanced among the several bodies of magistracy as that no one could transcend their legal limits without being effectually checked and restrained by the others.”

So what about recess appointments?

Democrats have, historically, opposed election-year recess appointments as far back as 1960, when the Democrat-controlled Senate passed a resolution, [S.RES. 334], prohibiting then-Republican President Dwight Eisenhower from making such appointments.

And, in 2012, the Supreme Court unanimously rebuked Barack Obama for exceeding his constitutional authority by making high-level government appointments when he declared the Senate to be in recess.

Justice Scalia, nominated by President Ronald Reagan in 1986 and confirmed soon thereafter by a 98-0 vote in the Senate, adhered strictly to the doctrine of constitutional originalism — the standard our Founders prescribed — reading the plain language of the Constitution for its original intent, and applying the historical context of the drafters when the plain-language intent was not readily apparent.

Scalia’s constructionist interpretation was contrary to those “activist judges” whom Thomas Jefferson warned would treat “the Constitution [as] a mere thing of wax … which they may twist and shape into any form they please.” Scalia provided an effective check against SCOTUS activists endeavoring to usurp individual freedoms with their errant notion of a “living constitution.”

Regarding judicial activists, Justice Scalia wrote, “As long as judges tinker with the Constitution to ‘do what the people want,’ instead of what the document actually commands, politicians who pick and confirm new federal judges will naturally want only those who agree with them politically.”

Of course, Obama will put forth a nominee who he believes will “twist and shape” the Constitution to comport with his “progressive” will. And any effort to defer his nominee will elicit cries of “obstruction.”

It is worth recalling, however, the level of obstruction Democrats put forth when considering President Reagan’s 1987 nomination of the distinguished jurist Robert Bork. After the confirmation of Scalia, Senate Demos were not about to consent to another judge who would interpret the Constitution as our Founders intended. Senator Ted Kennedy protested, “Reagan is still our president. But he should not be able to … impose his reactionary vision of the Constitution on the Supreme Court and the next generation of Americans. No justice would be better than this injustice.”

Soon thereafter, esteemed columnist William Safire coined the word “bork” as a verb, in reference “to the way Democrats savaged Ronald Reagan’s nominee, the Appeals Court judge Robert H. Bork.” The next jurist Democrats endeavored to bork was a black nominee, Clarence Thomas.

In the upcoming battle for control of the Supreme Court and, by extension, the United States of America, perhaps Senate Republicans should follow Sen. Chuck Schumer’s lead and refrain from consideration of any Obama nominee.

In 2003, Schumer, now Harry Reid’s heir-apparent as Democrat leader, declared, “We are blocking [Bush nominees] by filibuster. That is part of the hallowed process around here.” Indeed, they blocked confirmation of two outstanding judicial nominees, Miguel Estrada (a Hispanic man) and Janice Rogers Brown (a black woman).

More to the point, in 2007, 18 months before George W. Bush left office, Schumer declared: “[F]or the rest of this president’s term and if there is another Republican elected with the same selection criteria let me say this: We should reverse the presumption of confirmation. … I will recommend to my colleagues that we should not confirm any Bush nominee to the Supreme Court… In the end [we must] ensure that our Court reflects what America wants, rather than what a diminishing clique of conservative ideologues wish for. … I will do everything in my power to prevent one more ideological ally from joining Roberts and Alito on the court.”

Now, however, Schumer insists the Senate has “a constitutional obligation to hold hearings, conduct a full confirmation process, and vote on the nominee based on his or her merits.”

Let’s remind Obama that, despite his “obstructionist” protests, of the 16 presidents who once served in the Senate, only he endeavored to filibuster a Supreme Court nomination — that of now-Justice Samuel Alito in 2006. And he was joined by then-Senator Hillary Clinton, who now claims, “[Republicans] are even saying [Obama] doesn’t have the right to nominate anyone, as if somehow he’s not the real president.” Additionally, Obama filibustered circuit court nominees Janice Rogers Brown, William Pryor, and Leslie Southwick.

Asked about the apparent hypocrisy, Obama’s spokesman Josh Earnest said, “That is an approach the president regrets.” Seriously, he actually said that! Apparently it only took Obama ten years to regret it!

The editors of The Wall Street Journal weighed in with this salient advice: “Ignore any complaints you read about ‘unprecedented’ GOP ‘obstruction.’ As Justice Scalia warned, legal progressives made the Court a partisan cause by making value judgments that are best left for voters to decide. One result is that Democrats will have to fight and win an election in 2016 to replace the greatest contemporary Justice.”

Indeed, better to be an “obstructionist” than to consent to a “destructionist.”

Pro Deo et Constitutione — Libertas aut Mors
Semper Vigilans Fortis Paratus et Fidelis

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