by: the Common Constitutionalist
The upcoming presidential election is being hailed as the most important in our lifetimes – possibly in the history of this nation.
We always hear this type of thing every election cycle. This time however, the claim is absolute due to the recent passing of Justice Scalia and the subsequent tipping point in the balance of power of the supreme Court.
So I agree with those who claim that we will lose our country – we lose our Constitutional rights and liberties should just one more liberal justice be appointed. For this reason, it is imperative that the Senate leadership not even allow hearings, much less a vote on whomever Obama nominates.
The Senate leadership must understand that literally anything can happen should they allow an Obama nominee to come to a vote. There are simply too many spineless Republican Senators to take that chance. Short of an Article V Conventions of States, there would be no correcting the wrong outcome.
Many have pointed to the history of lame-duck appointments, giving deference to the next Executive – that it hasn’t been done in many decades. But historical precedent aside, Obama has every right under the Constitution to nominate someone, anyone to the court. The interesting thing is that if one reads Article II, Section 2, clause 2, the founders clearly did not make a fuss over the process. It was not some Earth-shattering event, but merely included in the several duties of the President.
It reads: “He [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, and which shall be established by Law:…”
No where does it even imply that the Senate is obligated to act in a timely fashion and it certainly says nothing of deference to the office of the President to grant him any appointee he wishes. In fact it was quite the opposite.
Pennsylvania delegate to the Constitutional Convention, esteemed attorney James Wilson, knew a thing or two about our nations founding, as he was a signatory of the Declaration of Independence, twice elected to the Continental Congress and one of the original supreme Court justices appointed by President George Washington. One of only six, nominated by Washington in 1789, I might add. You mean the founders weren’t hell-bent on nine Justices? How could the country ever survive with less? Somehow they managed to get by.
At the Constitutional Convention, Wilson argued that “a principal reason for unity in the Executive was that officers might be appointed by a single, responsible person,” thus avoiding “intrigue, partiality, and concealment.” At the same time, complete presidential control over appointments could allow a president to create offices and fill them with his favorites—the very definition of “corruption.” Sound familiar? In other words, it gives neither the president nor the Senate singular authority over appointments to the Court.
Many don’t realize that Wilson’s position, the position adopted by the Convention, was actually a compromise. The original position presented at the Convention was that of the Virginia Plan, not by Wilson, “that the National Judiciary be chosen by the National Legislature.” The legislature would both nominate and then consent to its own choice.
Yet at no time during the Convention did any of the delegates bring forth the notion of deadlines. Unlike today, the founders didn’t feel the need to hurry through the decision making process in order to “get things done.” They concentrated on getting things right rather than expedience.
Once again, our present day Executive and Legislature can and should look back to the men who were a lot smarter and more deliberative than they for the foundation of their decisions.