Within hours of the death of Supreme Court Associate Justice Antonin Scalia, Republican senators and candidates for President were saying that President Obama should not put forth a nominee, that we should wait for the Will of the People to be revealed in the coming election.
It is a seductive argument, if you don’t think about it… of course, that is the nature of seduction. Feel it, it feels so right, shhhh, don’t talk (don’t think), be carried away, float away with it feeling so right...The Will of the People…
Snap! Think using facts.
The Constitution (every Republican has one in their pocket, right?) says in Article Two, Section 2, Clause 2, “… 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,…”. That is, the President nominates and the Senate provides consent or rejects the nominee. There is no ‘except in an election year’ clause. If Obama were to not offer a nominee it would be an abdication of constitutional responsibility. If the Senate does not hold hearings and vote for confirmation, it would be an abdication of constitutional responsibility.
The Republicans are saying that we should wait for the Will of the People to be represented in the 2016 election. But, there is no precedent for that. In contrast, there have been numerous nominations for Associate Justices by Presidents in an election year, even in their last year of their second term. One example is President Reagan in 1988 nominating Associate Justice Kennedy as a third choice after his first two were rejected. (Parenthetically, it is arguable that Joe Biden could have overcome some of the difficulties he faced in the 1988 Presidential campaign if he’s ignored his responsibility as chair of the Senate Judiciary Committee, see What it Takes by Richard Ben Cramer.)
The Republicans are saying that we should wait for the Will of the People to be represented in the 2016 election. But, that will has been spoken in the 2012 election of Barack Obama as President with the known power to appoint Justices. Twice elected. The Republicans say that the 2014 election that put the Republicans in control of the Senate means the people no longer support the President. Maybe, maybe not. The way to test it is to have the actual argument over a nominee. The Constitution says the President nominates and the Senate provides advice and consent. That is to say: The Will of the People from both the 2012 election and the 2014 election are represented in the process.
That is, we can allow the Will of the People to lead us, because it has already been expressed…This wait for the Will to be expressed argument has some traction because that old actually-expressed Will is not seductive. Like most idealized offerings, seduction lays in their unexpressed possibilities not in their realities. The Will of the People of 2012 and 2014 are not seductive, not like the easy to idealize Will of the People yet to be discovered for 2016. That 2016 Will will be so lovely, so clear, so perfect an expression that we will all know what to do…. <sigh>
The Constitution is designed to deal with the reality of the situation, taking into account the Will of the People through two branches of government to establish members of the third branch. It is not designed to have us live in the thrall of seduction. Otherwise we will always be in a never-ending hesitation awaiting the next expression of the Will of the People, only 2 years or less away.