Monday, February 15, 2016
Unlike so much else, Supreme Court nominations are the kind of thing that senators and presidents seem to take seriously. A Supreme Court nomination with the reek of cronyism is poorly tolerated. It is a matter of legacy for both the Senate and the White House. Laws can be changed, but Supreme Court justices and their decisions tend to persist. Roger Taney was appointed to the Court by Andrew Jackson in 1836. His opinion in the Dred Scott case, decided fully twenty years later, was one of the motivating forces of the Civil War. Jackson had been dead twelve years, but his Supreme Court appointment was still influencing national political discourse.
And now a vacancy occurs on the Court, at what is also the dusk of the Obama administration. The right honorable Justice Antonin Scalia, the high priest of conservative jurisprudence has passed away. Agree or disagree with his political frame of mind, his impact on the Court and on American political life was outsized and would be difficult to overstate. On a Court that has fallen into a generally conservative pattern, his absence as that Court's most boisterous and straightforward conservative voice will be noticed.
The Constitution beckons. It's frosty 18th century language ill-abides the abdication of a fundamental duty of any branch. A fully functional Supreme Court represents a load-bearing column of the separation of powers, a concept so primordial that it is practically woven into the sacred parchment itself. For one branch to advocate a politically motivated delay in order to curb the functionality of another branch, strains at the very foundations of American democracy and as such is Constitutionally untenable.
While much of the President's agenda runs counter to my own, the basic functionality of government must persevere. Barack Obama was properly elected by the American people. His role as the head of the executive branch, whose role itself in this matter is etched into the Constitution, is not a matter for debate on the Senate floor, any more than it is a matter for debate on social media. The Supreme Court is comprised of nine members, it currently has only eight. It is the duty of both the legislative and the executive branches to ensure a full complement of justices, so that democracy can carry on. It is the role of the president to nominate. It is the role of the Senate to advise and consent - hardly carte blanche for delay and dissembling. For the Senate to demand the results of a future election before acting, ignores the conclusions made by America's voters in the last presidential election, and serves to fray the rightful bond of the electorate to its representative government.
Fealty to the Constitution is not a part-time affair, nor a political expedient. It is difficult to imagine the man and the public servant that we mourn today advocating to cripple the Court for baldly political justifications, in stark violation of the Constitution. Much of the Constitution is a document open to interpretation, a role that the Court itself has filled since Justice John Marshall, joined by a unanimous court, established the precedent in Marbury v. Madison. But what is not open to interpretation is the Constitutional role of the Executive and the Legislative branches in addressing a vacancy on the Court.