Nicholas Johnson
Iowa City Press-Citizen, April 8, 2016, p. A5
Iowa City Press-Citizen Online, April 7, 2016, 2:15 p.m.
Des Moines Register Online, April 8, 2016, 8:58 a.m.
"Examining the 'People's Voice,'" The Gazette, April 10, 2016, p. A3
The Gazette (online), April 10, 2016, 11:00 a.m.
"The Constitution, Supreme Court, and People’s Voice," The Daily Iowan, April 15,2016, p. 4 (not yet available online, 160415; a shorter version, with full text available below)
The U.S. Constitution mandates that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint...Judges of the supreme Court." [Art. 2, Sec. 2.]
Of course, any senator can vote “no” on Garland’s confirmation.
That’s not enough for today’s Republican Senate leadership. It totally rejects all portions of the confirmation process.
In 1987, President Ronald Reagan nominated Judge Robert Bork for the Supreme Court. Bork’s Senate hearing went badly. Nonetheless, his commitment to the Constitution caused him to insist on the full Senate’s confirmation debate and vote he knew he’d lose, saying “A crucial principle is at stake...the deliberative process.” [fn 1]
Given that the Republican Party professes as much allegiance to a literal reading of the Constitution as of the Bible, their Senate leaders’ refusal to vote is difficult to square with either the language of the Constitution or its interpretation by their poster judge, Robert Bork. [fn 2]
What justification do they offer? Majority Leader Mitch McConnell says they want to "give the people a voice" in the selection of Supreme Court justices. [fn 3] Let’s examine this rationale.
(1) For starters, the Constitution’s drafters were more interested in muffling the people’s voice than in sharing the establishment’s power with “the people.”
(2) Ours was not to be a direct democracy with decisions made by national referenda. Elected representatives would make the decisions.
(3) There were severe restrictions on who could vote — initially only land-owning, white males over 21. African-Americans got the vote in 1870 (15th Amendment). Women in 1920 (Amend. 19), and 18-20-year-olds in 1971 (Amend. 26).
(4) The drafters restricted for whom citizens could vote. Still today, we won’t be voting for president next November. The Constitution says our president will be selected, not by the people's voice or vote, but by "electors" appointed by each "State...in such Manner as the Legislature thereof may direct.” (Art. 2, Sec. 1.)
(5) Nor could “the people" even select U.S. senators. "The Senate...shall be composed of two Senators from each State, chosen by the Legislature thereof." (Art. 1, Sec. 3; changed in 1913, Amend. 17.)
(7) Even if constitutionally relevant, which it’s not, that people’s voice was clearly heard with the election of President Obama in 2008 and 2012. And the Constitution offers no hint that a president's judicial appointment power is any less on the last day of their presidency than on the first.
(8) If the popular vote in presidential elections is “the people’s voice,” what is it saying? At best, a majority’s preference between two candidates.
(9) Although not constitutionally compelling, theoretically a presidential campaign could turn on one single, dominant issue. But that wasn’t true in 2008 or 2012. Clearly, neither of those elections raised, let alone resolved, the Senate's constitutional right to refuse to undertake confirmation proceedings.
(10) These points are equally applicable to Senator McConnell’s insistence that the 2014 election of Republican senators was a people’s voice for Senate refusal to hold judicial confirmation proceedings.
The Constitution’s drafters knew the court’s justices could only function as intended if the public believed they were independent and non-partisan, able, honest and just.
The Republican Senate leadership’s response to Judge Garland is wrong, both constitutionally and in their "people's voice" rationale. It also further erodes public confidence in our unique and precious judicial institutions.
Whether they are also wrong that their chosen path will best serve their political self-interest we will only know after the people's voice is unambiguously heard in next November’s Senate elections.
_______________
Former law professor Nicholas Johnson served as a law clerk at both the U.S. Supreme Court and Fifth Circuit Court of Appeals, and maintains nicholasjohnson.org and FromDC2Iowa.blogspot.com. Contact him at mailbox@nicholasjohnson.org.
Notes
Footnote 1. "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.]
Footnote 2. In The Gazette's hard copy version of the column, this paragraph was edited to read: "Given that the Republican Party professes a literal reading of the Constitution, their Senate leaders’ refusal to vote is difficult to square with either the language of the Constitution or its interpretation by their poster judge, Robert Bork." The numbering is also removed from the numbered paragraphs.
Footnote 3. "'The American people are perfectly capable of having their say on this issue. So let's give them a voice,' Mr. McConnell said in an animated speech on the Senate floor." Carl Hulse, "Supreme Court Showdown Could Shape Fall Elections," New York Times (online), March 17, 2016, p. A1; and, "'It's not about him because we're living by the principle "let the people have a voice,"' [Senator Chuck] Grassley said." "Grassley, Garland Reprise '90s Court Fight; The Two Are Set to Meet for a Private Breakfast Today," The Gazette, April 12, 2016, p. A1; The Gazette (online), April 12, 2016, 6:05 p.m.
Nicholas Johnson
The Daily Iowan, April 15,2016, p. 4 (not yet available online, 160415)
The Constitution mandates the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court."
President Obama sent the Senate his nomination of Judge Merrick Garland on Feb. 13.
Of course, any senator can vote “no” on Garland’s confirmation.
That’s not enough for today’s Republican Senate leadership. They reject the entire confirmation process.
President Ronald Reagan’s 1987 nomination of Judge Robert Bork went badly. But Bork insisted on full Senate debate and the losing vote because “A crucial [constitutional] principle is at stake . . . the deliberative process.”
Thus, the leadership’s refusal to vote conflicts with both their professed allegiance to a literal reading of the Constitution and its interpretation by their poster judge, Robert Bork.
Senators Mitch McConnell and Charles Grassley say they want to "give the people a voice" in the appointment of judges. Let’s examine their rationale.
(1) For starters, the Constitution’s drafters were more interested in muffling the people’s voice than in amplifying it. Major issues would be resolved by elected representatives, not national referenda.
(2) Restrictions limited direct elections. Our Constitution still says our president is selected, not by the people's voice or vote, but by "electors" appointed by each "State . . . in such Manner as the Legislature thereof may direct.” Nor could “the people" select U.S. senators. "The Senate . . . shall be composed of two Senators from each State, chosen by the Legislature thereof" (changed in 1913).
(3) There were even further restrictions on who could vote — initially white, males, over 21, who owned land. African-Americans got the vote in 1870, women in 1920, and 18-20-year-olds in 1971.
(4) This history, plus the leadership’s respect for the late Justice Antonin Scalia’s search for the Constitution’s “original meaning,” should preclude any reference to a “people’s voice” in the confirmation process.
(5) What is “the people’s voice” saying in presidential elections? At best, a majority’s preference between two candidates. Even if constitutionally relevant, which it’s not, that people’s voice was clearly heard in President Barack Obama’s 2008 and 2012 elections. And the Constitution offers no hint that a president's judicial appointment power is any less on the last day of their presidency than on the first.
(6) Theoretically a presidential campaign could turn on one single, dominant issue. Clearly, neither the 2008 nor 2012 election raised, let alone resolved, the Senate's constitutional right to refuse to undertake confirmation proceedings.
(7) These points are equally applicable to Senator McConnell’s insistence that the 2014 election of Republican senators was a “people’s voice” authorizing his abandoning the constitutionally mandated confirmation process.
The Constitution’s drafters knew the court’s justices could only function as intended if the public believed they were independent and non-partisan, able, honest and just.
The Republican Senate leadership’s response to Judge Garland is wrong, both constitutionally and in their "people's voice" rationale. It also further erodes public confidence in our unique and precious judicial institutions.
Whether they are wrong that their chosen path will best serve their political self-interest we will only know after the people's voice is unambiguously heard in next November’s Senate elections.
No comments:
Post a Comment