The Constitution instructs the President to nominate Supreme Court Justices when necessary and for the Senate to give advice and consent. Senate Republicans are currently refusing to give advice and consent. The battle is inaccurately being portrayed as a partisan one. It is not. It is a Constitutional one.
On February 13 we all got the news that Associate Justice Antonin Scalia had passed. And then there were eight. The Constitution has a mechanism for just this sort of thing. The President is to nominate a new Supreme Court Justice and the Senate is to give advice and consent.
Later that same day Senate Majority Leader Mitch McConnell held a press conference to announce that he will not hold a vote on any nominee under any circumstance as long as Barack Obama is the President. Shortly after, Republican Senators, including those who were not into the idea when it was first proposed, fell in line.
Now, if you’re struck by how the last two paragraphs don’t seem to make sense when read in succession, you’re not crazy. Republicans are pledging to not do their Constitutional duty for a year. But we’ll get back to that.
Fast forward to March 16 and President Obama has nominated Merrick Garland to the Supreme Court. The Senate appears fairly steadfast in it’s stance, or resistance I suppose, that they will not vote on the nominee.
Throughout this time the media has portrayed this “battle” as being a partisan one. It is described as being about SCOTUS. It’s described as being about the partisan make up of the Court and it’s consequences. Senate Republicans don’t budge against Democrats/Obama over SCOTUS.
This has nothing to do with politics. This has nothing to do with the Supreme Court or Merrick Garland. It’s not about Obama or McConnell or any policy you can think of. The fight is over the Constitution. It’s also against the Constitution.
The Constitution I
Let’s go straight to the source. The relevant part of the Constitution is Article II Section 2. It states, regarding the Presidential powers, “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…”
What that means, and what it’s been understood to have meant until now, is that when there is a Supreme Court vacancy it’s the President’s duty to fill that vacancy. Let’s focus on two words here: shall and and.
It shall be filled. It does not say can be filled, or should, it specifically uses the word shall. It shall be done with advice and consent. This will happen according the Constitution. It gives no caveat or condition. It will happen because it’s an affirmative duty.
So we know what shall means, let’s talk about and. He shall nominate, and by and with the Advice and Consent of the Senate, shall appoint. It does not say if. It says and. The two are taken together. They are a package, the nominating and the advice and consent.
When you turn on Key and Peele, you do not assume it is Key if Peele decides to show up. Then if Peele decides not to, also no Key. Or can Key just do it by himself? What would happen?
Well, Comedy Central has not provided any instruction on what will happen if Peele doesn’t feel like doing his job. Comedy Central hasn’t done so because that premise is so ridiculous and so plainly contrary to what the clear, reasonable expectations are regarding a show with such a name. In the same way, and for the same reasons, the Constitution has not provided any explanation on what to do if one branch of the government decides not to follow the Constitution.
It is true that the word and is applied to treaties and some treaties don’t get heard by the Senate. Well that situation has been approved by the Supreme Court who ultimately, according to the Constitution, and not the Senate majority leader, decide what the Constitution says.
Furthermore, it is the result of an increasingly globalized world resulting in more international agreements than the Senate could really spend it’s time on. Also, these treaties that don’t get hearings, become law, they don’t just gather dust forever like Merrick Garland.
So it is true that advice and consent appears to mean something different shortly before the provision i sited. But it was not always viewed that way, and the new view has been deemed consistent with the Constitution by the Supreme Court, and it was done for logistical reasons.
So if Mitch McConnell’s twin becomes physically injured and has to park in a handicapped spot, it does not give Mitch McConnell the right to park in a handicapped spot too just because they look the same. The circumstances have changed for one of the twins resulting in approval, through the proper channels, to park where he wants in order to accommodate him for whatever difficulties he may be having.
This what McConnell does not understand, or really, is hoping you don’t understand. McConnell does not need to wait to approve a nominee, and he does not have the authority to wait either. The power, maybe, but not the authority.
So consider the word shall, consider the word and, and consider the fact that the founders, smart guys as they were, did not provide any instruction on what to do if one of the branches of government refuses to engage in the process of getting a new Supreme Court Justice into a vacancy. They didn’t, we can presume, because they couldn’t conceive of it.
Consider also the alternative. What if the current Republican stance, that advice and consent is optional, and you can just not perform that job if you don’t think it will help you politically, was adopted by everyone, always. Then what if a Justice retires and the President is one party, the Senate another? No new Justice.
Then what if the president just started, we’re going to be without a Justice for 4 years? Maybe 8? Then what if there’s a plane crash, all the Justices coming back from vacation, or what if we just go 4 terms of one party and a hostile congress throughout? Then we’ll have no Justices. We’ll have no Supreme Court.
Just two branches of government now. There is now a possible scenario where the Constitution eats itself alive. And ultimately Republicans would get what they want, the Constitution being a matter of opinion. Can we presume the founders did not intend to make, within the Constitution, the ability for the Constitution to destroy itself, all while following the Constitution?
So on top of everything, if you just map out every foreseeable scenario this type of behavior would result in, you’ll see many of the scenarios become literal threats to the existence of America.
Now, in light of that, let’s turn to what Republicans have been saying about their decision and how they plan on defending it. The Republican justification for this act essentially breaks down to two types of arguments: Pretending this isn’t a Constitutional issue, and weaseling out of the Constitution.
- Pretending this isn’t a Constitutional issue
So one group of arguments Republicans make in favor of having an empty SCOTUS seat for a year, are irrelevant arguments. They’re arguments that are so small relative to the Constitution that I’ve already spent too much time talking about them.
The arguments I’m talking about are often prefaced with a phrase like, “I just think we oughta…” There’s a lot of think, a lot just, a lot of believe, and a lot of in my opinion. What follows those words are inevitably irrelevant.
It doesn’t matter what you think. It doesn’t matter what I think or Obama thinks or McConnell thinks or anyone. It’s not up to us. It’s up to the Constitution. If you want to change that, then you have to amend the Constitution. You can’t just do what you want because it’s not in your strategic, political favor.
Republicans have even been bold enough to base this on a “Constitutional principle” that a president with just a year left should not be able to make an lifetime appointment. Usually, a “Constitutional principle” can be found in the Constitution. If the Constitution did not intend for President’s with just a year left to make appointments it would have said so. It does not. A principle maybe, but an unconstitutional principle is a more accurate description, as it plainly contradicts the document itself.
The crown jewel of this form of argument is just so convoluted it’s almost impressive. It’s like a snake eating itself, it’s a if a sword was also a shield and was fighting itself. The claim is they’re doing this to wait for the election so the American people can have a say. They’re violating our Constitution on our behalf. They’re doing it for us. And we didn’t even have to ask. How thoughtful.
Republicans are thwarting the will of the American people, for the American people. Like we’re an unruly kid who needs to be slapped all the time but some day we’ll thank them.
The American people already had a say in 2012 when we voted for Obama. We were all aware that it was a 4 year term. When Scalia passed we weren’t all like, what happens now? The American voter is generally pretty well aware that if a Justice leaves, the sitting President appoints his successor. We were all aware of this, and we voted for Obama.
But Republicans don’t like how we voted. So they are, in effect, making Obama’s term a de facto 3 year term. The American people voted for Obama to have a 4 year term and Republicans in the Senate are taking away the choice we made because they do not like it.
But again, it does not matter what they like. It does not matter what they think is best. It doesn’t even matter if they are right about when it is “best” to do this. The last words written in the Constitution are not “if you feel like it” and it’s not “unless that doesn’t work for you at the moment.”
In fact, the Constitution literally says exactly that. The Constitution “shall be the supreme law of the land” according to the Supremacy Clause. It goes on to say state laws “notwithstanding.” The founders probably didn’t think to include Mitch McConnell notwithstanding in there as well.
This is a situation so bizarre the founders clearly did not envision it occurring. It says shall. So to ask but what if they don’t, the response would have to be a definition of the word shall.
- Weaseling out of the Constitution
The other set of arguments is kind of rebutted by what we already discussed, the plain obvious accepted understanding of what the Constitution says. The reason I call this the weaseling out argument is probably evident just from the argument itself.
These arguments often begin with the phrase, “it doesn’t say.” Now think about that sentence fragment. Only two things could follow that phrase. The second part is either a loophole or a complaint.
I suppose Republicans could just be innocently critiquing the Constitution. Complaining that it doesn’t contain a timeline for example, but it’s more likely that when they say things like, “It doesn’t say when you have to give advice and consent.” what they’re looking for is a justification for their current behavior which is not on it’s face supported by the Constitution.
A technical exception to a set of rules that is contrary to the larger goals of the rules (Constitution) or rule makers (Founders), is the definition of a loophole. To act on a loophole is to weasel out of something.
Let’s indulge this argument for a second. There’s also no timeline in many other places in the Constitution. Yes, sure, freedom of speech, but when? Is it now? Has it happened yet? Is it in the past? Did we run out of free speech? Is it every other day? Is it awarded to the state with the best college football team?
Again, when you apply the logic of their argument elsewhere … everywhere … anywhere, the results become absurd. They’re just as absurd in the isolated context Republicans and McConnell are trying to keep them in.
The situation we’re in is genuinely absurd. McConnell and Senate Republicans are ignoring the Constitution for a year. They’re just going to pretend it isn’t there, for a year. Oh sure, they’ll follow the Constitution, just not this year. They’re not, not following the Constitution. They’re just holding off for a year, or so makes sense to them apparently.
The real bold part about it is doing it with a straight face. We’re just going to have 8 Supreme Court Justices and forget the Constitution for a year. What is the Senate doing? What is on the docket that is taking precedent over the Constitution and a branch of government? Because it seems like they’ve been taking plenty of down time lately. It doesn’t feel like they’re busy doing work.
Well the legal precedent McConnell sites is the “Biden Rule.” Never heard of it? That’s because it is completely made up. Joe Biden said maybe we should consider it 30 years ago. Of course, it was not considered. It is not a rule. It was a few words said by Joe Biden 30 years ago. McConnell is deciding to follow a suggestion Joe Biden made 30 years ago, instead of the Constitution.
It is not likely the case that McConnell believes Biden is a God so powerful his every utterance we are all bound by and can change the course of history. Because Biden’s suggestion was just that, only a suggestion. It was not followed because it was stupid.
Advancing a hypothetical to ignore the Constitution, while wrong, is not actually ignoring the Constitution, and that’s the dangerous thing. This is.the precedent. This is the “McConnell rule.” This is the thing that could make this a trend. It can make it possible to ignore the Constitution if you feel like it’s politically in your favor.
McConnell is ultimately not so stupid as to believe the Biden rule is a thing. What he’s doing is making the argument that two wrongs make a right. But the other wrong never happened. If he murders someone, he’s not innocent because Joe Biden once talked about murder in 1987.
Reductio ad absurdum is a form of argument we’ve played around with here where you demonstrate that accepting the logic of your opponent or denying your logic leads to absurd, unmanageable, or unreasonable results.
The Supreme Court decides by majority rule. There is an even number of justices at the moment. Yep. You feel that cognitive dissonance there? Again, you’re not crazy. This is in fact absurd.
We don’t need to really extrapolate their argument out to the point where free speech is time sensitive or optional, or where we run out of Justices. We are in fact already living in the absurd results of their decision. We have 1/3 of the government, the most important court in the land, unable to come up with a decision on controversial cases. Those are often sometimes pretty important cases too.
Just recently they had their first 4-4 decision. This for a year. The most important Constitutional questions without answers. Whichever answer those two sides had in that 4-4 decision, either answer would have been better than no answer.
This results in upholding the lower courts decision and providing no precedent. Meaning, in this issue, it is up to any court how their district interprets the law. So now the same law can mean different things depending on your location. We’ve hobbled a third of our government.
The Constitution II
When, in order to win the political battle you’re in, you have to find a loophole in the Constitution, you have to ask yourself what you’re fighting for? When, in order to beat your political opponent, you also have to beat the Constitution too, then what is it you’re truly trying to accomplish here? What is worth that?
The bottom line is, and pretty transparently so, Republicans in the Senate want to wait for the end of the election because Obama is a Democrat, and the next President, though rapidly more and more likely to be a Democrat, could be either one.
It’s perfectly understandable that they don’t like the situation they’re in. But based on how our democracy here in America works and has worked for hundreds of years, that is the situation they are in. There’s no way out of it. You don’t have to like it, but it is it.
The Constitution was not made to make a party the founders never heard of pleased with their lot regarding a Supreme Court deciding matters they never envisioned. The Constitution was made to enable the country to function and survive on into infinity regardless of what parties held what offices and regardless of whatever matters were in contention.
America is not an issue, or a party, or a lifestyle, or even a location. America is a process. America is the Constitution. It is the first and greatest contribution to the world and humanity America ever made.
A lot is made about the bill of rights, and that’s an important part, but in terms of word count it’s a small part of the Constitution. The majority of the Constitution is essentially a description of governmental functions and administrative design.
People mistakenly sift through the Constitution, or often don’t even bother to do that, to justify their specific policy preferences. But the Constitution is not about the founders reaching through time to guide people hundreds of years in the future, thousands maybe, dealing with things they could not possibly have imagined.
The founders after all were just people, as are we. We are all just people. That’s the brilliance of our democratic machine. If followed properly, democracy will work forever because it’s a perfect feedback loop. People vote, policy happens, policy affects people, people vote, etc.
One person in charge, anything could happen. A person is a roll of the dice, but people are a different story. People are good. People are smart. People feel what’s good for them and react positively to good and negatively to bad, perhaps taking some time but eventually they’ll recognize these things and policy will follow.
The Constitution was by no means perfect as written. It allowed for slavery for example. But it provided within it the ability to amend it. The Constitution was aware that it was not perfect, and in providing for that, allowed a way to correct it, and in that way kind of is still perfect.
It is totally possible, and has occurred many times that the gears of democracy have spit out a bad result, but eventually it gets fixed. Any mistake can be corrected, any problem fixed, provided that we allow the machine to continue running. The machine will always spit out more good than bad, but if you try to manipulate the machine into giving you more of what you want and thereby break the machine then no one gets anything.
Republicans in the Senate are in a way showing another imperfection in the Constitution. What happens if a holder of office refuses to do their duty, but also refuses to leave? Well if it’s a president you can impeach him. Although, even if you do, it doesn’t say when he has to leave office. Maybe just wait until the end of his term.
If it’s a cabinet member the President can fire him. If it’s a judge you can get rid of him. You can pretty much get rid of any politician who doesn’t want to do their job except for congressmen. Did the founders have too much faith in us then? Were they naive to think people occupying the United States Senate would have the perspective to do their job regardless of whatever petty political problem exists at that small moment in time?
Because that’s what you do with a person who won’t do their job, you fire them. You go into work and refuse to do work, but you assure your boss you’re just waiting until next year because there’s just a lot going on this year. It’s just a crazy year boss. What’s going to happen? You’ll get fired. And you should.
But Senators don’t have bosses…
Or do they?
Voters and the Media
They do. It’s us. We’re their boss. We can fire them in November. What the Republican Senate has done is dangerous. They’ve decided to make a choice between Republican and American. They’ve attempted to set precedent for a Constitution pending convenience approach to governing. It cannot exist now or ever.
But it does exist now. The only solution is to set another precedent. Establish that ignoring your Constitutional duties for a short term political gain is tantamount to retiring for any person in congress. It has to be a loss. It has to be a big loss. Just the same way Supreme Court opinions hold more weight and are less likely overturned if unanimous, so too will be the impression voters leave upon congressmen who draw a line in the sand between themselves and the Constitution.
The American people are already polling two thirds in favor of Republicans taking a vote. And let’s be clear, the Constitution, in all it’s wisdom, has provided Republicans a legitimate opportunity to prevent Obama from naming a Justice, and that’s by voting him down. Republicans aren’t saying no, they’re refusing to decide.
They’re doing so because that is so much easier personally than having to ruin the life of moderate judges they like, have voted for, and are perhaps even friends with. It’s much easier politically than having to explain why you voted against someone who might be very qualified and objectively deserving and possibly of one or more voting demographics.
Again, totally understandable why they wouldn’t like the situation they’re in, but that really does not matter. This is not a fight over SCOTUS. It is not a fight against Democrats. This is a fight over the Constitution, against the Constitution.
At the end of the day it is the Constitution of the American people, and it is up to the American people to preserve it. If we don’t preserve it, we don’t deserve it. So in order to further that goal the American people must vote that way, and it will be that way.
Every policy and political action that has ever been taken in America can ultimately be traced back to votes. The act of purposefully ignoring the Constitution, the constant shutdowns, Donald Trump, these are all symptoms of something within us in America.
And recall that feedback loop. We see it. Look at the polls. We don’t like. If we vote, that will be reflected. In fact, it’s already begun.
Senator Mark Kirk of Illinois was the first to fully break with McConnell. He’s recently compelled Mitch McConnell to “man up” and do his job. Lindsay Graham has, while not breaking with McConnell, openly pined for the days when this kind of stuff didn’t happen. Presidential candidate John Kasich even said Garland is a guy he would nominate.
This is why Garland is such a great pick. He’s undeniably qualified. He’s bullet proof. And he’s also a nice, calm guy. He’s just very likable. He’s also been confirmed already for other judicial positions, due to votes from many of the Republicans currently refusing to meet him.
These cracks are showing though because polls are indicating two thirds of Americans feel the Republicans in congress should hold hearings on the nominee.
Again, the media frames the poll question as if it is up to Republicans. The accurate framing is whether Senate Republicans should follow the Constitution and hold a hearing. But even with this watered down poll question 2/3 of Americans feel that hearings should be held. Americans want to follow the American Constitution. Go figure.
The bad polling for Trump has also led to a group of Senators who say they are open to confirming in the lame duck session. What this means is that after November, when the election results are in, then they might hold hearings on a nominee. If Americans elect Democrats to take the White House, and especially if the Senate too, then they’ll vote on Garland because Hillary will get a more liberal nominee through. If Trump gets elected they’ll wait for him to nominate. This is possibly even more gross than just outright refusing to follow the Constitution.
So make no mistake, this is not a SCOTUS fight. This is not a partisan battle. This is not Democrat vs Republican, it’s Republican vs American. Polls show America does not like it, even the watered down version the media presents to them, continually framing it as another partisan tussle.
The problem is fixable though. It can be fixed the same way it was created, votes. Journalism involves a set of skills, a great set of skills, but among them is not necessarily the ability to convey the importance of process to the American people.
A vital function of the media is to inform the public. Laws like the 1st Amendment for example help that. But it’s also a business. The news business runs on advertising dollars. Those come proportional to viewers. So in reality the media is here to make money.
We also live in a time when, in order to gain ratings from conflict, the media will often treat all sides as a matter of opinion, as having equal value and validity. They also do this for cowardly motivations, to avoid the pain and heartache involved with that classic empty accusation of bias. Rare is a journalist in the 21st Century who will not melt into a puddle and begged to be stepped on when faced with accusations of “bias.” Accusations which in most instances confuse bias with an opinion, or sometimes even just a follow up question.
Some news outlets are pretty transparently just running a business. Most are to some degree also that. You have to in order to stay alive, and if you don’t then you aren’t alive. It’s nobodies fault necessarily. It’s not the waters fault for flowing to the lowest point available.
But it is reality. Talk of process is not fun. It’s not entertaining. Painstakingly breaking down the grammar of Article II of the Constitution is not easy to digest for readers or listeners. And frankly, there’s always a risk of sounding condescending.
But still, it is reality, nothing can change that. The notion that this is a Constitutional crisis is an undertone of the reaction to McConnell’s decision. But everyone is afraid to make it the primary part of the coverage despite it being far and away the most important part of this ordeal.
After all, one Justice might last 30 years at most, but a voluntary Constitution for the Senate can exist forever. There’s no power higher than the Constitution, if you can openly ignore it, there’s no where else to turn. We’ve reach a hole in America in this space, we’re looking through to a place where America is not. McConnell has opened a worm hole that threatens to swell up and swallow us all.
Because America is a process. And the actions of Mitch McConnell threaten that process. It doesn’t matter what party someone who ignores the Constitution for short term political game. It doesn’t matter how, or why, or when, or where. It is all of ours. As diverse as America is, it’s Constitution is everyone’s.
The only recourse, the only mechanism left to save us from ourselves is to vote. It is a matter of will. The point’s been made here. It was made as thoroughly as I could make it. It was made that way here because I have not seen it made anywhere else. Perhaps the media has not addressed this issue correctly, but the buck stops with the American voter and it’s our responsibility to see what’s going on and act accordingly.
Now it’s your turn.
by Zack Goncz
Share if you enjoyed with the links below and tell us what you think in the comments section. Follows will be reciprocated.