Thoughts on the Ginsburg vacancy
TWO = = = Weaponization of the Appointments Clause
The Constitution Turned Upside Down
If the Appointments Clause of the Constitution (Article II, Section 2 Clause 2) went into sufficient detail to anticipate every possible contingency and scenario, it might resemble the federal tax code. Instead the language is spare and we are left to wonder, if we will, what those who wrote it intended by it and in that spirit how it should be applied today.
The clause states twice what the President shall do regarding appointments but only what the Senate must do for an appointment to take place, never what it shall do:
…[the President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court.
Seeking to provide an historical perspective, the Federalist Society noted that “at the North Carolina ratifying convention [in 1788], James Iredell characterized the advice and consent process thus:
“The President proposes such a man for such an office. The Senate has to consider upon it. If they think him improper, the President must nominate another, whose appointment ultimately again depends upon the Senate.’”[1]
That process seems simple enough. Requiring senatorial participation moderates otherwise unchecked executive authority and provides a mechanism to prevent an opportunistic executive from appointing the unqualified or unscrupulous.
But in so doing, did the Founders intend that the Senate could stonewall the appointment process indefinitely and through attrition conceivably put an entire branch of government out of existence? That seems unlikely, but “nothing in the rules” of the Appointments Clause precludes it. Taken literally and explicitly, the Senate could refuse to consider any nominations and eventually drive the number of Justices to zero. This suggests the Founders had a different interpretation of the Senate’s role and ultimate authority in the matter of appointments, if not higher expectations for the minimum degree of cooperation between the legislative and executive branches.
While much depends on what Iredell meant by “has to consider” and “think him improper,” it appears to me the spirit and intent of the Appointments Clause was mightily abused on two counts in 2016 following our loss of Justice Scalia.
- The Senate failed in its charge of “advice” (as the term meant in constitutional times) in that it refused to consider the President’s particular nomination, instead declaring that any nominee of the then President would be deemed disqualified for that reason alone.
- The Senate sought, if not specifically, then in kind to name the prospective Justice (a power explicitly reserved to the President) by elevating the matter of an existing Supreme Court vacancy to that of a campaign issue, presumably to attempt to affect the outcome of the 2016 election.
On its face this is a shocking instance of senatorial overreach. But let us cede that the actions of the Senate majority in this matter in 2016 were technically permitted under the Constitution. Something more occurred: their actions were widely self-justified on the basis that (in the words of the majority leader) “of course the American people should have a say in the Court’s direction.”(McConnell 3/16/2016)[2]. At least 27 members of the Senate majority serving in 2016 who are still serving today offered the same rationale of voter participation for their decisions (PBS 9/22/2020)[3].
Perhaps that would have been a noble impulse to solve a vexing constitutional crisis, though nothing in the Appointments Clause remotely suggests such an approach. But proof that it was contrived is now abundant with the occurrence of the Ginsburg vacancy, for suddenly (it would seem) no one is at all concerned for the voters views. It appears far more likely that such concern was never genuine for most senators who called for it, while those who may have been sincere in that belief were duped along with the rest of us.
What bearing does this have on the Ginsburg vacancy?
The Senate is now taking special pains to adhere to the Appointments Clause. The world’s most deliberative body is suddenly provoked to action with blinding speed, but adhering to it nevertheless, provided that the Ginsburg vacancy is viewed in isolation. However, when the Scalia and Ginsburg vacancies are viewed in the context of one another, the Senate’s bad faith is not simply a matter of suspicion but is unambiguously exposed.
A wrong has been committed in the filling of one or the other, more likely in the handling of the Scalia vacancy than Ginsburg's given the evidently false rationale of voter input popularly voiced in 2016. Had that wrong not been committed, the crisis we face now following our loss of Justice Ginsburg would not be upon us. The Senate would be working feverishly to restore balance to the Court, instead of creating a choice between enduring years of imbalance or the probable disadvantages of stacking.
Even had Judge Garland been appointed in 2016, Senate Democrats might well be as indignant over an 11th hour appointment as they are now, but that doesn’t mean their current outrage is entirely misplaced. Minority leader Schumer has complained “the Republicans stole two seats.” I believe that overstates the case. Yet if the Ginsburg vacancy is filled by the current congress I believe, subject to the outcome of the 2020 Presidential election, that we will all have reason to conclude that ONE of them was stolen; it’s simply an academic discussion about which one, and whether it involved a new level of parliamentary artistry or of constitutional assault.
There is, however, another way out…
[Next Essay, What to do upon finding the door to the safe was left ajar]
2. [https://www.republicanleader.senate.gov/newsroom/remarks/mcconnell-on-supreme-court-nomination]
