In a Republic, the People Ultimately Decide

 

shutterstock_296497025There has been a lot of talk among Democrats and much of the media (but I repeat myself) that in refusing to consider a Supreme Court nominee from a lame-duck president, the Senate is not “doing its job.” Such complaints are farcically hypocritical, coming from a party that, when the Senate was under its control, refused to pass a budget for years on end (arguably a more urgent issue than replacing a deceased Supreme Court justice, since there is no requirement for any particular number of judges). But let us set aside that hypocrisy. What is the Senate’s “job?” What are its “duties?” What are the President’s?

The word “shall” in Article II of the Constitution does not necessarily mean that it is a mandatory act, and there is no time limit on it. The President has the power to nominate, but not a mandate to do so. Similarly, the Senate has the power to advise and consent, but it is not Constitutionally incumbent upon it to do so. There is nothing in the founding document about “the Senate shall consider all nominees,” or “the Senate shall hold hearings on all nominees” (the word “hearing” doesn’t appear in the Constitution, and the first one for a Supreme Court nominee didn’t occur until over 80 years after the founding).

The Framers’ intent was not to ensure that appointees were appointed on any particular time schedule, or even necessarily at all. Rather, they wanted to ensure that it not be done unilaterally by a single branch. With the system of checks and balances, they were all about limiting government powers, and they made appointments, as with much else, difficult, particularly for lifetime appointments. If “advise and consent” meant that the Senate would simply rubber stamp whomever the president chose, it would defeat their intent. I doubt they’d be in any way displeased by the current Republican stance.

Arguments that it is the Senate’s “job” to consent to nominees are as flawed as arguments that it is the Senate’s (and Congress’s in general) “job” to pass legislation, or that it is the president’s “job” to sign it. Many in the media foolishly actually rate Congresses by how much legislation they shove through, or legislators by how much legislation they attach their names to, no matter how terrible it is. As I’ve noted:

Passing legislation, ratifying treaties, promulgating regulations are means to those ends but, despite the title, it is not a legislator’s job to legislate per se. It is not a diplomat’s job to ratify a treaty per se. It is not a regulator’s job to regulate per se. Those are simply tools granted them by the Constitution to carry out their true jobs, as defined above. They have others as well.

When it comes to legislation, the goal might be accomplished by passing legislation. It might be accomplished by repealing legislation (which is a form of passing legislation). Or it might be done by blocking legislation, if said legislation, in the mind of the legislator, is deleterious to any of the purposes in the Preamble.

The only real “duties” that any members of the three branches have, per their sworn oath to defend and protect the Constitution, are to (from the Preamble) “…establish Justice, insure domestic Tranquility, provide for the common defence [sic], promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” The powers granted them are simply a toolbox by which these duties are accomplished, and they will use those tools to best do so by their own lights. It is ultimately up to the people to decide if they are doing so, and to rectify the situation if not. In particular, “securing the Blessings of Liberty” requires a government that adheres to the limits of its powers specified by the Founders, and recognizing that individuals have rights, not presidents, who have no rights at all, let alone a “right” to have a nominee considered by the Senate.

Advocates for the President say that “the people decided” when they re-elected him in 2012. But there was a more recent election than that, in 2014, when the will of the people was apparently to put a restraining order on the president they had re-elected two years earlier, apparently with buyer’s remorse, by putting the Republicans in charge of both the Senate and the House.

If that new Senate now fulfills its role to “advise and consent” by simply advising the president that they will not consent until the next election, they will be carrying out their “duty.” And they too will be judged in that election, or at least a third of them will (as it happens, the Republicans have 24 seats at risk in November). Ultimately, in our system of government, all branches are judged and disciplined by the people. Let them do so again this fall.

Published in General
Like this post? Want to comment? Join Ricochet’s community of conservatives and be part of the conversation. Join Ricochet for Free.

There are 7 comments.

Become a member to join the conversation. Or sign in if you're already a member.
  1. Tommy De Seno Member
    Tommy De Seno
    @TommyDeSeno

    I’m having some issues with the post.

    First, there is a statute that sets the court number at 9.   Congress can change the law, but not ignore it.  They have to abide by the laws they pass like everyone else.  Changing it requires formality, not a daily reckoning of whether they feel like following it.

    Second, I did read the source that was linked but disagree with the conclusion on the word “shall.”   “Shall” and “may” are terms of art in law.  They certainly mean “have to”  and “has the discretion to.”

    Congress can short circuit the process by filibuster or stall, but an outright declaration that they won’t act runs counter to the letter and spirit of the law.

    The political answer?   Stall until November.   If a Republican wins, vote this guy down.  If a Democrat wins, vote him in, because we won’t get someone better from a Democrat.

    • #1
  2. Rand Simberg Inactive
    Rand Simberg
    @RandSimberg

    What if Trump wins?

    • #2
  3. Tommy De Seno Member
    Tommy De Seno
    @TommyDeSeno

    If Trump wins? Then yeah, I agree with your post. Don’t put anyone on the court.

    That guy flips more times than fish on a deck.

    Who knows who he’ll be after the election.

    • #3
  4. Z in MT Member
    Z in MT
    @ZinMT

    McConnell has already promised that the Senate won’t take action on any SCOTUS pick until after the election. This is McConnell’s last chance. If he goes back on his promise, there will be even worse open revolt in the Republican party than there is now.

    • #4
  5. aardo vozz Member
    aardo vozz
    @aardovozz

    Tommy De Seno:

    Congress can short circuit the process by filibuster or stall, but an outright declaration that they won’t act runs counter to the letter and spirit of the law.

    The congress is dealing with a president who acts  contrary to the letter and the spirit of the law. What choice do they have?

    • #5
  6. rebark Inactive
    rebark
    @rebark

    Tommy De Seno: “Shall” and “may” are terms of art in law. They certainly mean “have to” and “has the discretion to.”

    If we take ‘shall’ to imply obligation, then does not ‘shall advise and consent’ mean that Congress is obliged to consent to any recommendation of the President? I rather doubt that was how the original text was meant to be read.

    If we assume that Congress has the right to consent and the right to withhold consent, then we must assume that their advice, which is covered by the same shall, is similarly free to be given and free not to be given.

    • #6
  7. Tommy De Seno Member
    Tommy De Seno
    @TommyDeSeno

    Rebark the “shall” refers to the obligation of the President. The Senate’s obligation to act is stapled to that with the word with:

    He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

    • #7
Become a member to join the conversation. Or sign in if you're already a member.