We have breaking constitutional law news. Barack Obama is a textualist! It’s true, and remember, you heard it here first.
I know this because at yesterday’s press conference, when talking about the process for filling Justice Scalia’s seat on the Supreme Court, the President said: “Historically, this has not been viewed as a question. There’s no unwritten law that says that it can only be done on off years — that’s not in the constitutional text. I’m amused when I hear people who claim to be strict interpreters of the Constitution suddenly reading into it a whole series of provisions that are not there.” He later said the following: “And I would challenge anyone who purports to be adhering to the original intent of the Founders, anybody who believes in the Constitution, coming up with a plausible rationale as to why they would not even have a hearing for a nominee made in accordance with the Constitution by the President of the United States –with a year left, practically, in office. It’s pretty hard to find that in the Constitution.” The full transcript is here.
It’s also pretty hard to find a right to an abortion in the Constitution. But I digress. Republicans now should have no fear of the President’s nominee to the Court. We can be confident that the President will appoint someone who, like him, believes that we should not read into the Constitution “provisions that are not there.” Justice Scalia would be proud.
Of course, I’m being sarcastic (which would also make Justice Scalia proud – and I imagine his response to the President might well be the same as mine). The President may well be on the right side of the political debate here – in fact, I think he probably is, in the sense that the Senate should at least give serious consideration to any qualified nominee. But the President is being hypocritical on the constitutional question. Or, it turns out, he’s not a textualist after all. I know this because he is also reading things into the Constitution that are not there. The Constitution says the President shall “nominate, and by and with the advice and consent of the Senate, shall appoint . . . judges of the supreme court.” But it does not say when he shall do so, nor does it say when the Senate must give its consent to the nomination. It is a fair argument to say that, as a matter of practice, it should be as soon as reasonably possible. But one must concede that that is not in the constitutional text.
Moreover, the appointment of Supreme Court Justices is provided for in the same Appointments Clause that governs the appointment of ambassadors, other public ministers and consuls, and all other officers of the United States. President Obama’s textual argument, then – if accurate – would apply to every one of these positions. Yet I have not heard him make the same argument about timing with respect to any other officer – in some cases, it took the President months to nominate someone after an opening arose. Indeed, when he was a Senator, President Obama voted to filibuster the Alito nomination (which the President has now said he “regrets.” Of course he does. Which is to say, of course he says that now. But it’s not like he was unaware of the relevant arguments at the time. He knew what he was doing.).
Now, in none of the cabinet-related or other-officer-related situations would I say that the President acted improperly, or not soon enough. And I am happy to concede that, as a practical political matter, there is a major difference between a Supreme Court nomination and a nomination for other offices, even cabinet secretaries. But it is simply wrong to say that the Constitution imposes some kind of rigid, textually-clear time-frame for making and approving an appointment pursuant to the Appointments Clause, regardless of the officer being appointed. And there is certainly nothing in the text that says the Senate must confirm a nominee, even if the nominee is “highly-qualified” (a term also found nowhere in the constitutional text). It might make sense to do so, but the constitutional text does not require it. So much for the President’s brief foray into textualism.
Of course, the dilemma for Republicans is this: once they say they will at least consider someone, and the person is highly qualified (as I expect he or she will be), how do they, in good conscience, vote against the nominee on anything other than purely political grounds? For a Party that is supposed to be opposed to politicizing the Court, the Republicans are entering dangerous territory here. It will be a tough needle to thread, rejecting a nomination while doing so on apolitical terms.
That said, Democrats cannot really complain can they? True, the judicial confirmation process is riddled with hypocrisy on both sides. But when Democrats complain, the Republicans have one name to toss back at them: Robert Bork.