Note: This column was written and scheduled for publication before the results of the election were known. I publish it now only as an exercise in nostalgia: hearkening back to a time when we could indulge the collective fantasy that the American judicial system would not become the administrator of shari'a law, Trump style. Enjoy while you still can!
Left-wingers and progressives have just as much potential to be amygdala-driven fanatics as people on the religious right. Doubt me? Take a look at “It’s Time To Expel Senate Republicans For Violating the Constitution” recently forwarded to Facebook from a site called PoliticsUSA. The most salient virtue of the piece is to provide a sterling example of Justice David Souter’s recent warning on YouTube about the dangers of “pervasive civic ignorance”. Part of that “civic ignorance” is a failure to recognize the important distinction between constitutional issues and political issues. The refusal of Senate Republicans to hold confirmation hearings on the President’s nomination of Judge Merrick Garland to fill the Supreme Court vacancy left by Justice Antonin Scalia’s death is a case in point. So is the oft-repeated vow of Senate Republicans to not confirm any Supreme Court nominees of a President Hillary Clinton. By seeking to take the indisputably scandalous behavior of the Senate Republican leadership and fob responsibility for that behavior off onto the US Constitution is only to reinforce “civic ignorance” by denying the responsibility of American voters to police and to punish the conduct of their own duly elected legislators. Yes, there is a crisis. The article is right in that regard. But the crisis is political, not constitutional.
The “terse text” of the Constitution regarding the President’s nominating power is very … well … terse and unadorned. Article II, section 2, paragraph 2 says:
[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties … and by and with the Advice and Consent of the Senate, shall appoint … Judges to the Supreme Court …
Period. That’s all. There is language in Article III about Supreme Court Justices, though nothing about any specific number of Justices, which is always set by ordinary statutory law. The text most relevant to the PoliticsUSA article, however, is conspicuous only by reason of its absence: a time-table or time limits for the nomination and confirmation of Supreme Court Justices. In fact, there is no time-table or schedule or “drop-dead date” associated with any office subject to the appointive power of the President and the confirmatory power of the Senate.
Language like “violating the Constitution” is grossly overblown, misleading, and irresponsible. It implies that the dilatory Republican Senators are engaging in overtly criminal conduct – “violating” the Constitution, the “supreme law of the land” (Article VI, “supremacy clause”), would be criminal by definition – when, in fact, the Senators are merely being incompetent, politically driven, room-temp-IQ, where-the-sun-don’t-shine intimate bodily orifices. In fact, this is actually a contest of dueling ignoramuses: PoliticsUSA for suggesting that the Senators’ behavior is criminal, and people like Mitch McConnell for urging that the American people be given a “voice” in the selection of Justice Scalia’s replacement. He and his vox-populi-intoxicated colleagues need to read Article III of the Constitution again and note that nowhere in that Article – or anywhere else in the Document – are the people given a voice in the elevation of jurists to the Supreme Court. The only voice the people have vis a vis Supreme Court appointments is indirect: by electing the President and the Senators who do have a direct voice. (The Framers had good reason to cut the people out of the direct loop, reasons I have neither the time nor the space to even synopsize here. Suffice to say that we should be glad they did, because sometimes the most constructive thing vox populi can do is to STFU. I would to Great Cthulhu and the Old Ones that the individual States had made service on the State supreme courts purely appointive. The State of Kansas, in particular, would be a rather happier place these days, had they done so.) So my reaction to the PoliticsUSA article and to McConnell & Co.: a plague on both your houses.
But the PoliticsUSA piece is inconsistent, even in it own terms. In criticism of Mitch McConnell, PoliticsUSA cites an article by Ian Millhiser about NRA v. Reno in which the latter takes McConnell to task for reading into a Federal law requiring the purging of gun-purchase records a time limit that is not there. One can only wish that the author of the original Politics USA article had been as fastidious about the presence or absence of time limits in the Constitution vis a vis Senate confirmations of Supreme Court nominations. PoliticsUSA cannot even seem to remember the proper name of Judge Garland:
More recently it was another Republican Senator, Richard Burr, who weighed in and told Republican supporters that not only was President Obama’s SCOTUS nominee Merrick Gardner [sic] not going to be confirmed after the election, he pledged that no nominee would be confirmed if Hillary Clinton is elected in November.
One more time: the name of the President’s Supreme Court nominee to replace the late Justice Antonin Scalia is Merrick Garland. One can only repeat the President’s remark about Sen. Marco Rubio’s hell-or-high-water determination to vote for Donald J. Trump: Aw, c’mon man! At least get his name right!
But the PoliticsUSA piece is right about the fundamental issue: there is a crisis. But the crisis consists in Republican Senators simply not doing the job they were elected to do. Not doing the job feloniously. Not doing the job corruptly. Just not doing the job, period. The first two modes of not doing their job – through felony and corruption – are outright criminal. And the Senate itself has the power under the Constitution to deal with such instances by the expedient of expulsion, at which point criminal law and criminal prosecution can take the process the rest of the way. But, short of actual criminal negligence and malfeasance, not doing your job, period, is not a crime. Nor is sheer, castrated hound-dawg, just-fer-the-helluvit laziness. The customary way of dealing with the latter as a purely political issue is the venerable, hoary, and time-honored and -tested means of voting the duplicitous, malingering whang-doodles out of office at the earliest opportunity. No need to allege constitutional violations. No need for accusations of “high crimes and misdemeanors”. Use the damn vote. No need for a photon torpedo, or even a plain-vanilla hydrogen bomb.
Strictly the un-nuclear option: just vote.
James R. Cowles
PS -- [W]henever any Form of Government becomes destructive of these ends [of life, liberty, and the pursuit of happiness], it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. -- T. Jefferson, Declaration of Independence, 1776
Mitch McConnell ... US Congress ... Public domain
Supreme Court building ... Daderot ... Public domain
US Constitution ... National Archives ... Public domain
US Senate confirmation hearing (John Roberts) ... US Senate Historical Office ... Public domain