Home / News / Article


March 18 2016

The President's Preorogative, And The Senate's

Washington Examiner
Erin Hawley

On Wednesday, President Obama announced that he is nominating D.C. Circuit Judge Merrick Garland to the United States Supreme Court. That is his prerogative. And by all accounts, Judge Garland is a fine man. But the Senate has its own constitutional prerogative, one that it is imperative that it exercise in this profound moment of constitutional controversy.

The president's announcement comes at a time when our country is at a crossroads. This crossroad is all the more significant because the Supreme Court vacancy at issue is a unique one.

First, the vacancy to be filled is that of conservative legal champion Justice Antonin Scalia. Known for his quick wit and biting dissents, Justice Scalia transformed the way that courts and lawyers interpret the text of the Constitution. His theory of originalism constrained the ability of unelected judges to substitute their own subjective views of how a constitutional provision should operate for the original understanding of the text. So too for statutes. Justice Scalia insisted that federal courts look to the actual words of a statute — the democratically enacted text — not to a judge's own view of what a statute should accomplish.

Needless to say, there will be no "replacing" Justice Scalia. But his legacy reveals just how much is at stake with the appointment of a potential replacement.

Second and ironically, it is precisely because not all judges and not all administrations share Justice Scalia's view of a limited federal judiciary that Supreme Court confirmations are so important.

The Founders never contemplated a Supreme Court that routinely ruled on the most pressing social issues of the day. To the contrary, those who ratified the Constitution considered the judiciary the "least dangerous" of the federal branches because it has "neither force nor will, but merely judgment." It was to interpret the law, not make it. In fact, the early Supreme Court struck down only two federal statutes as unconstitutional during its first seventy years.

What a different world we live in today. As Justice Scalia himself put it just last June, we are too often "ruled" by "a majority of the nine lawyers on the Supreme Court." The "practice of constitutional revision by an unelected committee of nine," he wrote, "robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves."

As the Supreme Court decides issue after issue that the Constitution leaves to the democratically elected branches, the constitutional checks placed on the federal courts become even more important. To put it bluntly, those on the Supreme Court and those in politics profoundly disagree not just over the outcome of specific cases, but more fundamentally over the method of interpreting the Constitution. This meta-question concerns the very power of the federal courts. What is it that the federal courts are supposed to be doing?

It is thus critical that the Senate take no action on the Supreme Court vacancy created by Justice Scalia's death until the American people have had an opportunity to make their will known through the next election. This is not an abrogation of the Senate's duty, but an exercise of it. The Appointments Clause provides that the president shall appoint a nominee, subject to the advice and consent of the Senate. This clause gives the Senate an independent and unqualified power to reject a presidential nominee for any reason.

There is no textual requirement that the Senate vote on a nominee or provide a hearing. Confirmation hearings are of relatively recent vintage, and there is compelling originalist evidence that the Framers did not require affirmative action by the Senate to reject a nominee. Indeed, the Framers rejected a proposal by James Madison that would have placed the burden on the Senate to act. Under Madison's approach, nominees would have been automatically appointed, unless the Senate acted to reject them. With the "advice and consent" provision, however, the Framers placed the burden on the president to persuade the Senate to confirm a nominee.

As a senator, President Obama sought to block an up or down vote on Supreme Court nominee Samuel Alito. Other prominent Senate Democrats have argued that election-year vacancies should be held over so that the people may have a say in their nominee. The Senate should ensure that the next president can appoint the next Supreme Court nominee by refusing to take up consideration of this nominee.

Erin Hawley is a legal fellow at Independent Women's Forum.

Independent Women’s Forum’s mission is to improve the lives of Americans by increasing the number of women who value free markets and personal liberty. Sister organization of Independent Women’s Voice.
Follow us