The Republican Majority Leader of the U.S. Senate, Mitch McConnell, and the Republican Chairman of the Senate Judiciary Committee, Charles Grassley, both insist that a nominee to the U.S. Supreme Court should not be approved in a presidential election year and they insist instead that the nation wait until the next President is elected, about nine months from now.
Both Majority Leader McConnell and Chairman Grassley approved and voted for President Ronald Reagan’s Supreme Court nominee, Circuit Judge Anthony Kennedy, in a presidential election year, 1988, when President Reagan was a “lame duck.” (You may want to listen to what Chairman Grassley said in 1988 at Judge Kennedy’s confirmation hearings – http://www.c-span.org/video/?c4580671/grassley-supports-kennedy).
The vagaries of when a presidential nomination may occur has no bearing on what the constitution requires.
Especially when there have been 13 other Justices approved in presidential election years in our nation’s still young history including Justices Oliver Ellsworth (1796), Samuel Chase (1796), William Johnson (1804), Philip Barbour (1836), Roger Taney (1836), Melville Fuller (1888), George Shiras (1892), Mahlon Pitney (1912), John Clarke (1916), Louis Brandeis (1916), Benjamin Cardoza (1932), and Frank Murphy (1940).
The Senate’s refusal to meet its constitutional obligation has allowed us to see how the independence and function of the Supreme Court shall be compromised.
The Supreme Court shall find itself evenly divided on a matter, 4-4, and thus set no national precedent, as was the case with a decision involving the Equal Credit Opportunity Act, and what may likely happen in another case pending involving the Affordable Care Act.
Consider the “original intent” of the framers of the Constitution in 1787. They provided for “one Supreme Court” in Article III, Section 1, and Congress only held sway over inferior courts such as they may ordain and establish, as stated in Article I, Section 1. This construct was “intended” to guarantee the independence of the Supreme Court from other inferior courts and from the Congress and the President. The President’s power to appoint with the advice and consent of the Senate to the Supreme Court is found in Article II, Section 2, clause 2. Article VI, clause 3, states, with crystal clarity, that “the senators …shall be bound by oath or affirmation to support this Constitution.”
If these Senate leaders truly were honest, they’d admit there’s no “exception” or “precondition” in the Constitution that limits the president’s authority to nominate or that relieves the Senate’s constitutional obligation to advise and consent.
The Senate, however, flatly refused to act before there was even a nominee. Sure we have one now, Judge Merrik Garland, but even before the President identified this worthy nominee, the Senate leadership said it would approve no one.
They would not advise nor consent, no matter how impressive the nominee’s credentials or fair or just his disposition.
Alexander Hamilton wrote that a nominee should be rejected only for “special and strong reasons.”
Chief Justice John Marshall was of the view that the Constitution is “a superior, paramount law, unchangeable by ordinary means or it is on a level with ordinary legislative acts.” Otherwise, he wrote, that “written constitutions [would be] absurd attempts, on the part of the people, to limit a power of its own nature illimitable.”
Justice Marshall rejected the notion that a constitution could be “absurd” and insisted, ours was “a government of laws not of men.”
It is time that the Senate replaced the arbitrary dictates of several men with our nation’s superior and preeminent law, the U.S. Constitution.
[John P. Flannery, a former federal prosecutor, having also served as the pro se law clerk for the 2nd Circuit federal appellate court, and as Special Counsel to the U.S. Senate and U.S. House Judiciary Committees.]