Up or Down: The Senate Judiciary Must Consider a Presidential Nomination to fill Supreme Court Justice Antonin Scalia's Seat. It's Constitutional By Craig Jackson Professor of Law Thurgood Marshall School of Law Texas Southern University

This is a new blog and as such I am exploring the contours of “A Progressives View of Constitutional Matters”. So yesterday I am looking through my e mail and one of the legal news sites to which I subscribe announced the decisions of the members of the Senate Judiciary Committee not to convene to hear any candidate that the President might send to the committee to replace Justice Antonin Scalia on the Supreme Court. I filed that away under the category of obstructionist politics, sent out an e mail to my faculty colleagues titled “It's On!! Republicans on Judiciary Committee vote not to hold hearings on Scalia seat”, and settled in to an afternoon of writing and reading and coming up with blog ideas.


About an hour later, my esteemed colleague and professor of Constitutional Law and all around smart guy, Mike James stormed into the office declaring the unconstitutionality of the move by the Senate Republicans on the committee. I thought that I had dimmed his outrage by noting that its politics, bad politics, but politics and not necessarily unconstitutional, but then he made an interesting point. To what extent can one branch of government “hamstring” another branch to the point of stopping the workings of government? This of course is an interesting question coming at a time when the United States is always under a threat of government shutdowns over budget disputes between the executive and legislative branches. So it seems the idea of inefficient government is built into the system in order to stem the accumulation of power that might otherwise occur to one branch or another, something that the framers, we are told, were deathly afraid of. And that is that.


But Michael’s point got me thinking about both sides of an issue that is too often brushed off as just bad but perfectly constitutional politics. The Republican majority on the Judiciary Committee sees a political pitfall during an election year of rejecting a reasonable moderate candidate (which is the only kind of candidate that a president of one party could possibly hope to get through a Senate of another party), and does not want to give the President the opportunity to put the Senate to the test. If we assume that not convening the Senate Judiciary Committee to hear any nominee from President Obama is unconstitutional, how would that argument be made? Well, first, let’s consider the structure of the Constitution.


Built into the Constitution are structural principles that support the notion that inefficient government was part of the constitutional design. Checks and Balances and Separation of Powers are the catchwords that we as Constitutional Law professors throw out to demonstrate the almost unearthly wisdom of the framers of the Constitution. In their wisdom, just freed from the throes of the tyranny of King George for which much blood was spilled (spilt?), something was needed in the second constitutional project (the first, the Articles of Confederation having failed miserably) to prevent new King Georges from occupying the Presidency, but at the same time there was the need to stem the power of Congress, lest the legislature undermine the idea of a head of state and the benefits flowing from the ability to speak with a single voice for the nation. Checks and Balances and Separation of Powers, examples of which are dispersed through the first three sections of the Constitution, would serve both purposes, even if the result was to slow down government to avoid accumulation of power.


But was the inevitable result of slowed down government, gridlock and stall, also within the contemplation of the framers. One consideration is to look at the political crowd that the framers had to work with, many of whom took part in the drafting of the Constitution. The politics of early America were certainly far more fractious than what we bemoan today. The union nearly fell apart on several occasions generations before the Civil War and the incivility among the political hierarchy reached its zenith with the murder of a former Secretary of the Treasury by a former Vice President of the United States. Under these circumstances could the glaring specter of ineffective government have been part of this constitutional design?


The political elite started tweaking the design almost from the beginning. The war power, like other aspects of government, became the subject of tweaking early on. Presidents since Jefferson (who sent the Marines to quell the pirates on the Barbary Coast without a declaration of war or some lesser quasi constitutional permission) have sent people into hostilities without formal declarations of war through a myriad of devices of questionable “strict” constitutionality. Is this evidence of a new constitutional standard or simply a flawed design?


Then there is the judicial review, a process of judicial nullification of action of the political branches by the unelected federal judiciary. In a scenario eerily similar to the present circumstances, Federalist Party President John Adams and the Federalist Congress tried to appoint as many members of the judiciary as they could before the inauguration of Democratic-Republican Party President-Elect Thomas Jefferson, but came up short. Jefferson declined to seat the remaining appointments approved by the previous Congress. A suit by one of the snubbed would be judges was filed in the Supreme Court as a matter of original jurisdiction, the authority to be the first court to hear the matter which was authorized by the judicial legislation in effect then. Yet the Supreme Court declined to rule on the matter because the legislation granting the authority to the Court was inconsistent with the Constitution—unconstitutional. But at no point in the Constitution is the Court given the authority to nullify a Congressional law. Acts of the British Parliament could not be nullified, and still cannot be today by the judiciary of that nation. So nothing in the legal culture of the new country supported such a power at the national level. Yet the Supreme Court did so anyway to “check” the power of Congress to act outside of the Constitution.


Both of these “tinkerings” occurred within the first fifteen years of the ratification of the Constitution.


So, is an advice and consent feature that does not mandate at least consideration by the Senate of the Supreme Court nominating a deliberate feature, a flaw, and/or something needing “tinkering”? Was it expected to work by the framers, or did they understand that it might not work so well at times?


Under Article II Section 2 the President: “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.” This language carries with it the assumption that the President may not receive approval of his choices for the Court, and indeed that could mean that the Court would be shorthanded for a while until the Senate settled on a presidential nomination that it could consent to. Fair enough. But the language, in my view, does not contemplate idle action. The President must make a nomination under this provision despite the entreaties by some politicians that he not do so within hours of Justice Scalia’s death. What the Senate Republicans are saying is that they will not consider any nominee, sight unseen, that this President presents to the Committee. This would turn the President’s mandatory act of making a nomination into an idle act since there will be no hearings on anyone submitted to the Judiciary Committee where the Republicans hold a majority. Canons of interpretation notwithstanding, this would not make much sense as just another part of the system of checks and balances a concept which contemplates a competition of power between the branches. Rejecting a president’s choice would check presidential power. Declining to allow hearings of a Presidential nomination to the Supreme Court justice is to cast the mandatory nomination as an idle act. It should be noted that within the legislative branch, one house of Congress could decline to consider proposed legislation of the other branch, yet that feature is, first of all, intra-branch and, second, would render the entire branch inert unless some level of negotiation is initiated and accepted by the two houses. Checks and balances contemplates that one branch will either accept or reject an action, particularly a mandatory action, by another branch. It does not contemplate rendering mandatory acts of one branch meaningless, particularly for political reasons.


The point of this is that the system of checks and balance is part of the constitutional design, but the tact taken by the Senate Republicans on the Judiciary Committee is not part of that system and hence not contemplated as part of the constitutional design. The reasoning behind Jefferson’s unilateral foray into Libya in hot pursuit of the Barbary Pirates (which Congress later approved) as well as subsequent hegemonic acts by later presidents (each of which could have been ended by Congress by cutting off funds) and the Supreme Court’s assertion of the power of judicial review was that they were needed interpretations of the Constitution to address challenges to governance without which governmental structure would fail, certainly not part of the framers’ “original intent”. Judicial review has been accepted as a feature of the nation’s constitutional structure. The contours of the war power remain a subject of debate to this day. Yet both devices became a part of our national governing as a matter of necessity.


Unlike these examples, there is nothing the President can do to make the Judiciary Committee convene on the same order as commanding troops without a declaration of war, or simply rendering a Congressional law unconstitutional. He could take Congress to court, but this is unlikely and ill advised. However, the Constitution’s phrasing of advice and consent as a condition to appointment, and not as a clearly described mandatory action of actually granting or denying consent (as opposed to inaction) would appear to be a flaw in the drafting creating a constitutional gap. As such, like the absence of judicial review and a clear description of the war power, this “gap” should be filled by an understanding that the Senate cannot simply decline to act, for political reasons, on a president’s nominee.
Up or down on consent, the Senate must convene a process. It’s a constitutional obligation.

Reflections on Justice Scalia--by Craig L. Jackson, Professor of Law Thurgood Marshall School of Law at Texas Southern University

So I spent much of the morning and the entire afternoon writing a section in an article I am working on critiquing originalism and the jurisprudence of its main proponents Justices Scalia and Thomas. Writing extemporaneously and unedited for my first draft of my first draft of the section, I critiqued the justices’ willingness to undercut substantial Court precedent, presumably written by able justices on both the right and left of generations old Commerce Clause precedent. Satisfied that I had laid the groundwork for further research and writing, I got home turned on the television to watch some sports. Instead I was confronted with the breaking news of the death of Antonin Scalia.


My first reaction when I hear of anyone’s death is sadness. Having lost a parent myself within the last three years, I also think of the family and what they will go through. My reaction to Justice Antonin Scalia’s death was no different. I posted condolences on Facebook.


But for figures as consequential as Scalia, one, especially someone in my profession, does not stop at condolences. I wondered about the affect it would have on the Court, the culture wars being debated within that body, the process of nomination and appointment, and the politics of all of that, all the while still feeling sadness for the family and friends of the justice.


So my comments should not be taken as insensitive to the loss that many are feeling this morning. It is possible to mourn a death while at the same time assess its impact in a case like this. And this impact will be huge.


Obviously the first step in returning to normalcy after the death of a Supreme Court justice—and normalcy is defined as nine—is to speculate who the President will appoint. But in this case panic has apparently struck the conservative world. In less than 24 hours after his death was announced on network news programming, a substantial amount of chatter had coalesced on the right around the idea that President Obama should defer the nomination to the next president. This would be unprecedented, and unnecessary for the right considering all Senate conservatives have to do is turn down the nomination. Indeed they have the numbers in the upper chamber to do just that. So why the chatter for “deference”?


It has to do with the unseemliness of nomination fights and the impact such a fight could have on the fall election. Though the prevailing view that the era of tough SCOTUS nomination fights began with the liberal rejection of Robert Bork in the late 80s, I seem to recall from my high school years that the Nixon nominations of Judges Haynesworth and Carswell causing a major row over the extreme conservativeness of the circuit court judges. But there certainly was a time when even controversial presidential nominees during controversial times were approved by the Senate as a gesture of cooperation with a president. Eisenhower’s nomination of Earl Warren for Chief Justice was a recess appointment at a time when the Court was preparing to hear re-argument in the Brown v. Board of Education of Topeka Kansas case, which became the most important decision of the Court since the Civil War. In fact, Warren went into the re-argument, and started using his political acumen as the former governor of California to press for a unanimous vote in the case before even being confirmed by the Senate. Ah, those were the days my friend.


But this fight will be wild and crazy this time because President Obama would be poised to reverse the two generation long conservative majority of the Court. It was a conservative majority that did not provide as much joy to conservatives as they would have liked because of ideological defections by the likes of Justices Harry Blackmun, John Paul Stevens, David Souter, and the swings of Justices O’Connor and Kennedy. An Obama appointment could lead to a presumably solid progressive majority. Of course an Obama nominee could also defect or swing, as the tenure of Byron White, a Democrat and Kennedy appointment proved, but such defections have seldom occurred among liberals.


And this is the fear of conservatives. They have had enough difficulty keeping their own justices in line, now an unabashedly liberal president is poised to appoint a fifth and decisive liberal justice. And the only way to oppose such a nomination provided for by the Constitution is to stage a bitter battle in the Senate that could have significant negative repercussions for the conservative party in an election year, especially if Obama appoints an individual with impeccable credentials both politically, professionally, and academically. Or they could pretend that there is some kind of precedent for presidential deference to a successor in the last year of a presidency. There is none, just ask Justice Anthony Kennedy who was confirmed 28 years ago this month in the final year of the Reagan presidency.


There is another point to make about the passing of Antonin Scalia. Was he really as good as he has been portrayed? Ok, I will start with my main complaint—he was bombastic and insulting in his dissents and oral argument back and forth. And if the members could laugh that stuff off, populations insulted by remarks characterizing voting rights legislation as a matter of racial entitlement, that the University of Texas does not benefit from the presence of black students who would be better served attending lesser schools, and that liberal activism for LGBTQ rights is powered by a “homosexual agenda” might not be so resilient, considering that such language fuels antagonisms that sting and hurt in the real world, but might not exist in the parlors of 1 First Street N.E. Washington DC.


This alone does not disqualify him for jurisprudential greatness, but it does put the accolades over the last day into perspective. His brilliance as a jurist really cannot be dismissed—the man was smart. But his every word or argument was not laced with deep meaning and hard to refute arguments justifying the usually conservative conclusions that originalism was so cleverly designed to reach in many areas. In fact, I would have thought that the award for the most consequential conservative over the last generation would have gone to Chief Justice William Rehnquist, whose opinions perplexed me as a liberal student, liberal attorney, and liberal professor until his death in 2005. Seldom did Rehnquist resort to insults or belittling statements to emphasize his point—indeed the closest thing to a temper tantrum Rehnquist had, before he was Chief Justice, was in a dissent in Garcia v. San Antonio Mass Transit Authority a case which overturned his well-crafted opinion in an earlier decision limiting the federal government’s role in regulating employment policies of local governments. In anger Rehnquist simply stated that the majority was wrong and that the position in the overturned case would again be the law of the land someday.


Rehnquist was especially good at crafting opinions from the bodies of old decisions. Using quotes from previous cases, either his own, or those of another justice, Rehnquist made arguments fitting his outcome that appeared based in former cases, even former cases that he had dissented from or would have dissented from had he been on the Court. And in one of his most important majority decisions, he took what had been regarded as mere happenstance—the fact that Commerce Clause decisions since the New Deal had all authorized congressional authority to regulate activities affecting the economy, which, as it turned out, were themselves commercial in nature. He used this fact to create a heretofore unexpressed commercial activities limitation on congressional authority under the Commerce Clause.


Scalia, an acknowledged traditionalist and conservative, was clearly brilliant, and is noted for championing originalism as a mode of constitutional interpretation. As a textualist (which he felt complemented his originalism) he is also remembered for his disdain for legislative history, as well as foreign and international law, and as a pragmatist, he railed against inconclusive decisions that provided little guidance to the circuits. Articles have been, and now will be in droves, written as to whether he applied originalism consistently or only where he could get the outcome he wanted. He described himself as a faint hearted originalist who would not follow the doctrine wherever it lead. “I am an originalist. I am not a nut” he once said. Originalism, seeking truth in the original intent of the framers of the constitutional text being applied, is tailor-made for a traditionalist conservative since it looks to founding intentions in a country whose founding struggle against Great Britain was supported by English conservative philosopher Edmund Burke. It’s not a terribly risky post on which to tie down one’s judicial latitude if one is a conservative. And to the extent that Scalia’s criminal procedure, privacy and some of his free speech jurisprudence is characterized as receiving praise from liberals, the original intent of those provisions comes from a generation of political theorists who lived through British authoritarianism and who in turn conjured a document designed to counter what they had just left.


But the American Constitution is an outlier among more modern constitutions because of its brevity and the need to give substance to terms like due process, commerce, and the concept of federalism defined rather opaquely in the Tenth Amendment. How originalism and its textualism complement gets one closer to “right” outcomes has been a mystery to me and other critics of the doctrine (though Scalia would have argued that vague provisions demand an originalist interpretation). In his most important majority opinion he wrote that the Second Amendment guarantees persons the right to bear arms. To get there, however, one has to agree that the language of the Second Amendment [A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed] is clear. To Scalia it was. To many, one would have to ignore the militia language for the amendment to be considered clear. However, once there is a declaration of clarity (and even if the passage remains ambiguous), the next step in the originalist’s path is to look to history to determine the meaning contemporary to the times. Then it comes down to picking one’s history. Historians disagreed on the history behind this amendment, or behind the culture producing this amendment and the disagreement was sharp as noted in Justice Steven Breyer’s dissent in the case. It would seem that for originalism to be a credible interpretive device, it would need to be backed by consensus history. The history picked by Justice Scalia in this case was nothing of the sort.


If I were ever tasked with picking a conservative Supreme Court hero of the last near half century, and I never will be, I would have picked Chief Justice Rehnquist for the reasons stated. Rehnquist, as Chief Justice, established the conservative court revolution that conservatives in the Nixon era were hoping for under Chief Justice Burger, but never got. And if I am perceived as wrong about the relative importance between Rehnquist and Scalia, the best test would be the answer to the question, if Scalia had never served on the Supreme Court, would it have been less conservative than it is now? I do not believe so. A fifth conservative vote of an articulate chronicler of conservative principles with the temperament of Chief Justice Rehnquist would have served the purpose most ably, and even that imaginary justice would have had to contend with the swings of Justices O’Connor and Kennedy. And to be sure, one does not move members of the most powerful High Court in the world to your position by bombastic language and insults even if one is a nice guy outside of the pages of United States Reports.