According to Sen. Elizabeth Warren, the future of the republic teeters in the balance. Unless the United States Senate bows to the will of President Barack Obama and approves his replacement for Justice Antonin Scalia on the Supreme Court, everything we hold dear will be lost.
A refusal to get with the program, Warren insists, “would threaten both the Constitution and our democracy itself. It would also prove that all the Republican talk about loving the Constitution is just that — empty talk.”
This is the twisted view now prevalent on the left and in the media: It reads Article II of the Constitution giving the president the power to appoint justices with “the advice and consent” of the Senate as, in effect, an affirmative obligation on the Senate to consider and approve the president’s nominees.
Might this wholly fanciful constitutional exegesis have something to do with a desire to replace Scalia, a giant of originalism, with another progressive rubber stamp? Cut to Sen. Chuck Schumer, a giant of clever partisan manipulations. Back in 2007, the New York Democrat all but pledged his life and sacred honor to blocking any further George W. Bush appointments to the Supreme Court — and somehow democracy survived.
Of course, Barack Obama can nominate whomever he likes to the Supreme Court. Of course, the Senate can block him or her. And of course, Democrats can call Republicans heedless obstructionists and try to turn the public against them. This is the natural contest between the political branches, which is a feature of the U.S. Constitution, not a bug.
At the fault line between the two elected branches, the nomination process is inherently political, and, inevitably, tensions will be highest when a president is about to leave office. Josh Blackman of the South Texas College of Law found that the most recent examples of a president getting an election-year nominee through a Senate held by the opposing party were 1988 (Ronald Reagan got Anthony Kennedy after the rejection of Robert Bork) and then all the way back in 1880 (Rutherford B. Hayes got William Burnham Woods).
The Congressional Research Service looked at rejected Supreme Court nominees a few years ago and concluded, “Opposition to the nominating President played a role in at least 16 of the 36 nominations that were not confirmed. Many of the 16 were put forward by a President in the last year of his presidency — seven occurred after a successor President had been elected, but before the transfer of power to the new administration.” (In the 19th century, there was a much longer gap between the presidential election and the new president taking office.)
No doubt, Republicans will take heat for simply saying “no” to another Obama appointee to the court. But there will be none of the faux drama of a government shutdown, when the national parks are shackled and the media acts as if America’s national life is on the verge of collapse. The country will be able to survive some 4-4 Supreme Court decisions, which affirm the lower-court decision.
This is a chance for the Senate, in behalf of the prerogatives of Congress, to show some institutional self-respect. It owes President Obama no deference or consideration. He has trampled on the legislative power at every opportunity, including attempting to deem the Senate in recess on his own say-so (he lost the resulting Supreme Court case 9-0). His unconstitutional immigration and clean-power directives both have been held in abeyance by the courts.
If President Obama wanted a collegial relationship with the Republican Senate, he should have thought of that long ago, and if didn’t want to lose the Senate, he should have moderated his stances. Now, he will pronounce himself shocked and saddened that Congress doesn’t want to hold his coat while he remakes the high court. The Senate should hold firm, and let Elizabeth Warren and her colleagues rend their garments and gnash their teeth.
Rich Lowry can be reached via e-mail: comments.lowry@nationalreview.com.
