Monday, March 21, 2016

The People's Voice, Constitution, and Supreme Court

"Our view is this: Give the people a voice in the filling of this vacancy."

-- Republican Senator Mitch McConnell, Majority Leader, U.S. Senate [Jennifer Steinhaueer, "Mitch McConnell Speaks Out on Garland," New York Times (online), March 16, 2016, 12:21 PM ET]

The Republican Senate leadership, in the person of Majority Leader Senator Mitch McConnell, greeted Senator Barack Obama's 2008 election as President of the United States with the candid declaration that its purpose, its focus going forward would be to make Obama's a failed, one-term presidency.

This month that goal has played out in the context of a Supreme Court appointment. Following the death of Justice Antonin Scalia on February 13, on March 16 President Obama sent the Senate his nomination of Justice Scalia's replacement.

This followed the Constitutional provision that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the Supreme Court . . .." [Article 2, Section 2.]

Following their make-Obama-fail game plan, the Republican leadership's response has taken the form of not just failing to confirm the President's nomination of Chief Judge Merrick Garland -- following one-on-one meetings, committee hearings and floor debate -- but a refusal to even undertake any of those traditional preliminaries to confirmation. [Photo of Chief Judge Merrick Garland, U.S. Court of Appeals, D.C. Circuit; credit: CNN]

No public official or journalist has suggested that the Senate is required to confirm President Obama's nominee. Each Republican (and Democratic) senator has the constitutional right and opportunity to vote "No" on the confirmation of Judge Garland -- just as they did when they voted down President Ronald Reagan's 1987 nomination of Judge Robert Bork to the Supreme Court (by a vote of 42-58 on October 23).

The issue is, rather, whether they have the right to refuse to undertake any and all elements of the process the Constitution requires of them.

It is noteworthy, with regard to this year's Supreme Court nominee, what Judge Bork said following the Senate committee's rejection of his nomination:
There should be a full debate and a final Senate decision. In deciding on this course, I harbor no illusions [regarding the probability of my Senate confirmation]. But a crucial principle is at stake. That principle is the way we select the men and women who guard the liberties of all the American people. That should not be done through public campaigns of distortion. . . . For the sake of the Federal judiciary and the American people, that must not happen. The deliberative process must be restored.
["Bork Gives Reasons for Continuing Fight," The New York Times/Associated Press, October 10, 1987.]

For a political party whose leaders professes as much allegiance to a literal reading of the Constitution as of the Bible, it is a little difficult to square their rejection of the confirmation process with either the language of the Constitution or its interpretation by their poster Judge, Robert Bork.

All they have been able to come up with is a profession of a desire to "give the people a voice" in the selection of Supreme Court justices (quoted at the top of this blog essay). What they seem to mean by "voice" is postponing the Senate's responsibility until after the next presidential election -- in part, some contend, in a self-serving effort to convince their base how important it is to retain Republican control of the Senate by reelecting the Republicans already there.

Whatever their motives may be, rational support for this "people's voice" assertion is somewhere between difficult and impossible to find.

(1) For starters, those who drafted the Constitution went out of their way to insure that the people's voice would be muffled by what we today refer to as "the establishment."

(2) No one was thinking of a direct democracy, like a New England town meeting. They designed a representative democracy, in which elected officials would make all the decisions.

(3) And there were significant restrictions on who could even vote -- a privilege first limited to land-owning, white, males over 21 years of age. African-Americans, who weren't even counted for more than 60% of their number (Article I, Section 2), weren't granted a right to vote until 1870 (Amendment XV). Women had to wait until 1920 (Amendment XIX), and 18-20-year-olds until 1971 (Amendment XXVI).

(4) Even the few who did get to vote weren't trusted with the power to elect, or not, those running for office. To this day, even those who do get to vote don't get to vote for their president. The drafters saw to that. Article II provides that the actual selection of the president will be made, not by the people's voice or vote, but by "electors" (appointed by each "state . . . in such Manner as the Legislature thereof may direct . . .").

(5) And, senators take note, nor did the drafters envision that the vote or voice of "the people" would be doing the selection of senators, either. Article I, Section 3 ("The Senate . . . shall be composed of two Senators from each State, chosen by the Legislature thereof . . .." This was left unchanged until 1913, with the passage of Amendment XVII.)

(6) In short, the drafters of the Constitution did not envision a role for a "people's voice" in the sense that Senator McConnell is using the words (the results of a presidential election).

(7) Even if the "voice of the people" was constitutionally relevant in that context, that voice was heard in both 2008 and 2012 -- President Obama not only having been elected, but then re-elected. And there is, of course, no constitutional time limit on the president's judicial appointment power -- he or she has as much of that power on the last day of their presidency as they had on the first day.

(8) Moreover, to the extent the popular vote in a presidential election can be said to be an expression of the people's voice, that voice does not clearly say anything beyond their choice between the two major parties' nominees for the office. And even that message is not all that clear. Many eligible American voters don't bother to vote. Others hold their nose when they do, picking "the lesser of the two evils."

(9) Although it still wouldn't be constitutionally compelling, it would be theoretically possible that a presidential election would be fought out between two candidates taking opposite positions on one single, dominant issue -- perhaps like the Lincoln-Douglas debates regarding slavery. But that was not the case in either 2008 or 2012 -- those elections did not even raise (to the best of my present memory) an issue regarding the Senate's constitutional right to refuse to consider a president's judicial nomination, let alone turn on such an issue.

(10) All of these responses are equally applicable to Senator McConnell's suggestion that the "people's voice" in 2014, re-electing a Republican majority to the U.S. Senate, supports the Republican leadership's current intransigence. (a) Each of those individual senators' elections had multiple variables affecting the outcome. And (b) even if a case could be made that a single dominant issue in all of those campaigns (won by Republicans) was a desire that their senator vote "no" on the confirmation of potential justices perceived as "liberal," that would only support the theory of a "people's voice" for "no" votes on some nominees, not support for the leadership's refusal to engage in the confirmation process at all.

Therefore, it seems to me, the Republican Senate leadership is wrong in the position it has staked out with regard to President Obama's nomination of Judge Garland -- both as a matter of constitutional interpretation, and in terms of their "people's voice" talking point argument. Whether they are also wrong as a matter of their own political best interests we will only know after we hear the people's voice next November.


I'd like to add a personal note regarding the politicization of the U.S. Supreme Court. From an early age I've been aware of the Supreme Court and its justices. I majored in political science in college, and was blessed with a remarkable constitutional law professor in law school who strengthened those early interests. This was followed with clerkships -- first with a U.S. Court of Appeals judge, and then a justice of the Supreme Court. I've subsequently taught con law, as we call it, on occasion. So my support of the institution of the Supreme Court is emotional as well as intellectual.

This may reveal a measure of naivete if not outright ignorance, but I can honestly say that I do not recall during my year at the Court (the 1959-60 Term) conversations with, or writings of, justices, law clerks, or other Court employees even revealing partisan (i.e., political party) preferences, and certainly not overt advocacy. The focus was on the facts and the law as revealed in the briefs, oral arguments, our own research, and ultimately our justices' printed opinions.

I've always thought that orientation was a part of the genius of the idea of a non-political, independent, institution made up of nine individuals with lifetime appointments, not subservient to either the Executive or Legislative branches of our federal government. It made possible the resolution of conflicts between the other branches (and also the states) that might otherwise have thrown our nation in chaos.

Its power, such as it was, came not from armies, multi-billion-dollar appropriations, or the delivery of votes. It came from a largely unarticulated agreement among Americans regarding their preference for this non-violent means of dispute resolution, and the ethics (rather than campaign contributions) that drove its decisions.

Theater was used to re-enforce this ideal. Justices wore black robes. They entered the Court from behind a curtain, through which they returned to their chambers after the oral arguments. They sat at a bench raised above the level of those in attendance. In my day the podium for a lawyer arguing before the Court came complete with what were, literally, quill pens. High metal gates closed the hallways leading to their chambers. During my year they very rarely, if ever, appeared in public, or sat for print or television interviews. Their social life was restricted. And in their professional life they had no constituents as such, and were rarely if ever visited by lobbyists, or lawyers with cases pending before the Court. No one but the justices was permitted to be present during their secret deliberations regarding Court opinions. When an opinion was final, they would come out from behind the curtain once again, take their nine assigned seats in the Court, and read the opinions to those in attendance.

The trust that gives the Court the power we need for it to have is a fragile thing. It is easily destroyed by public anticipation of predictable 5-4 votes, and journalists' talk of "liberal" and "conservative" justices whose votes can be easily guessed if one knows the political party to which they, and the president who nominated them, belonged.

Those who wrote our Constitution did not conceive of the Supreme Court as yet a third political branch of government. They knew it could only play the role for which they fashioned it if the public believed it was special, trustworthy, independent, honest and just -- and if the public was correct in so believing.

What today's Republican Senate leadership is doing with regard to President Obama and his nomination of Judge Garland is not only a violation of the Constitution's provisions regarding such nominations, it is also further contributing to the erosion of the public's perception of this unique and precious American institution.

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