Let’s dispense immediately with the leading platitude: “elections matter.” Of course they matter. But presidential elections and Senate elections both matter. And if you doubt the stakes of elections and of your vote, consider the situation in which the Nation today finds itself: elected officials in each of the political branches of government must work together – together – to replace a towering figure in the law, whose seat on the highest Court in the land could change the course of American law for years to come, on issues of great practical importance to the American people. Think about that when you cast your vote. True, situations as we face now are rare. But when they happen, you do not want a hot-head; you don’t want impulsiveness and bluster and hubris. You want sober, intelligent judgment exercised by prudent people with experience in governing, and who can see the whole board, not just their poll numbers and ego.
So saying “elections matter” only takes you so far. And thus we arrive at our current dilemma. The Constitution says the President shall nominate and appoint Supreme Court Justices. But in that same clause of Article II, it says the President does so only with the advice and consent of the Senate. Those who say that we should “follow the Constitution” need to be more clear. Those who say that Republicans should accept the fact that President Obama holds the appointment power until January 20, 2017 also need to accept the fact that the Republican Senate holds the advice and consent power until that very same month. In my view, neither side has done a particularly good job of making its respective case thus far. And those whose claim to the mantle of self-righteousness hangs on the notion that the President has constitutional power to nominate someone are having an argument with no one – it is undisputed that the President has the power to nominate someone, and I suspect he will. Soon. Indeed, I think he should. He has an obligation to preserve, protect, and defend the Constitution, and I believe that this duty includes keeping federal courts functioning as the law requires. That is especially true when important cases about the meaning of the Constitution must be decided.
But saying that the President can and should nominate someone tells us absolutely nothing about what the Senate should do. The Senate does not work for the President. And though Democrats in the Congress are all-too-eager to do the President’s bidding on many occasions, I think this is a silly and woefully weak view of their job. Senators (and Representatives) should protect the prerogatives of their institution, not of their President when he is a member of their Party. As I have said before, the executive and legislative branches can be simultaneously energetic; constitutional power among the political branches is not a zero-sum game. Sure, there are times when one branch ought to be deferential to another based on considerations of constitutional design. But the Framers had in mind that the branches would use their respective constitutional weapons to protect their institutional prerogatives.
I will devote future posts this week to evaluating the arguments from each side here – the Democrats, who obviously want a nominee to be confirmed; and the Republicans, some of whom are adamant about preventing confirmation of a nominee until the next Administration. For now, though, I think it is important to keep this battle in the proper perspective. Yes, it is partly about raw politics and each side wanting the Court’s balance to favor their own view of the law and the Constitution. But it is also about a constitutional framework that makes those political battles possible – indeed, that embraces them.
Only trouble is, sooner or later, someone wins and someone loses. Who will it be? Stay tuned.