Faculty Blog: The Ninth Justice

At this writing, Senate Republicans continue to refuse even to hold a hearing on President Obama’s nominee to succeed the late Associate Justice, Antonin Scalia, on the U.S. Supreme Court. The fullest explanation of their collective decision to ignore the Senate’s constitutional role in the judicial appointment process has come from Utah Senator Orrin Hatch who, in a recent New York Times op-ed, spelled out their arguments.

In that piece, Senator Hatch attacked President Obama’s judicial appointments for embracing “the sort of judicial activism Justice Scalia spent his career seeking to curtail.” Worse, in Senator Hatch’s view, when Democrats controlled the Senate they were complicit in this effort. Thus, he concludes, voters should decide what kind of Supreme Court they want through the 2016 Presidential election—which can happen only if the Senate delays confirmation proceedings on the President’s nominee, Judge Merrick Garland. He argues that considering a nominee today would be “irresponsible” and, he concludes, not “in the best interests of the Senate, the judiciary and the country.”

There are more than a few problems with Senator Hatch’s reasoning. The first is its contempt for the Constitution. Senator Hatch invokes the spirit of Justice Scalia but not his approach to constitutional interpretation, which begins with the text itself. While Article II does not state that the Senate must approve any particular nominee, it does say that the Senate must do something—namely, give its advice to the President on his choice of nominee. As a matter of practice and for some time, the Senate has fulfilled this responsibility by holding hearings at which Senators have an opportunity to question the nominee to determine his or her fitness for the post. The Constitution contains no exceptions for, say, nominations made in the last year of a President’s term in an election year. There is a strong textualist argument that a Senatorial refusal to hold hearings, or consider a nominee in any substantive way, violates the Constitution.

Next, consider Senator Hatch’s accusation that President Obama has used his power to fill vacancies on the federal courts with judges who will promote his agenda. Given the lack of pure political power judges possess, what the Senator probably means is that these judges are in general unlikely to hold unconstitutional executive efforts to promote the President’s agenda (the agenda, that is, of the candidate who received the most electoral votes in the last Presidential election). Senator Hatch is probably right here, but, more to the point, it’s not news. This is what Presidents get to do under the Constitution. Surely Senator Hatch could not maintain that Republican Presidents haven’t sought (or wouldn’t seek) to nominate judges who would uphold their particular agendas. The nomination and confirmation processes provide political checks on the Court through the judicial selection process, with the power to nominate being enjoyed exclusively by whoever is occupying the Oval Office. If Republican Senators would like to see a different kind of nominee in the future, they should attend to the task of winning back the White House.

Finally, there is the related argument that Senator Hatch and his Republican colleagues, by declining to hold hearings or in any substantive way consider Judge Garland’s fitness for the Court, are in fact saving the Court and its reputation from politics. This is nonsense. As just discussed, the Court is a political creature to the extent it is shaped by the political actors who participate in the selection of its members. What the Senate Republicans are actually doing is undermining the Court’s ability to fulfill its constitutional functions. Just last week (at this writing), the Court issued an order in a case involving the construction of the Religious Freedom Restoration Act that seemed transparently designed to stave off a 4-4 vote. That order, which sought to solve a problem of religious liberty presented by the law, seemed more like the kind of solution an administrative or legislative body might consider. But, facing the possibility of another year without a ninth justice, the Court presumably was acting, in the interests of justice and efficiency, to try and make sure cases are actually resolved.

At the end of the day, the makeweight arguments articulated by Senator Hatch do no great service to the memory of Justice Scalia—or, indeed, respect for the Constitution itself. They belie the real reason Republican Senators refuse to consider Judge Garland: because Republicans have come to depend upon the willingness of a majority of the Supreme Court to police the engines of democracy in ways that produced results they favor, from trimming Congress’s power under the Commerce and Spending Clauses, to establishing an individual right to bear arms under the Second Amendment. Simply put, the Republicans want the Court in their corner, and nothing short of another Justice Scalia will do.

And so Senator Hatch and his colleagues delay, waiting on the hope—faint though it may be—that their party will prevail in the November election. In the meantime, their inaction establishes the dubious precedent that, when a majority of Senators do not want to play by the rules the Constitution establishes, they can simply take their toys and go home.

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