Robert Meyer
Why the Senate leadership must not cave on Garland
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By Robert Meyer
May 14, 2016

Recently, we have witnessed a debate on whether the Senate should vote on Obama's SCOTUS nomination Merrick Garland. But the better question is whether they have a constitutional obligation to vote.

Article II, Section 2 of the Constitution states that the President "shall nominate, and by and with the advice and consent of the Senate, shall appoint... judges of the Supreme Court...." The Senate is not required to consent to the president's nomination, but rather the Senate's consent is a requirement for allowing the nominee to be appointed. Failure to vote is the absence of consent.

In consideration of the "advise" portion of the advise and consent clause, I have to wonder what advice Obama sought from conservative legislators?

On the question of whether Garland should be confirmed, nobody was more expressive on that principle, than Obama himself. In 2006, he justified his advocacy for filibustering the Samuel Alito nomination with the following explanation.

"There are some who believe that the president, having won the election, should have complete authority to appoint his nominee and the Senate should only examine whether or not the justice is intellectually capable, and an all-around good guy. That once you get beyond intellect, and personal character, there should be no further question as to whether the judge should be confirmed.

I disagree with this view. I believe firmly that the Constitution calls for the Senate to advise and consent. I believe that it calls for meaningful advice and consent that includes an examination of a judge's philosophy, ideology, and record."

Obama and I agree on at least one concept.

If the Senate's failure to vote is actually a breach of constitutional obligation, then there would be a legal remedy to counter the illegal activity, rather than just organizing a campaign to shame the Senate leadership into caving.

Despite the ancillary reasons given by both sides, either for or not to vote, the reason the Garland nomination is being held up, is because it would disrupt the ideological balance of the SCOTUS. Decisions that were previously 5-4 in one direction would be 5-4 in the opposite direction, disqualifying what was achieved legislatively, or validating what could not be achieved legislatively.

When searching for a judge we should best heed the advice given by Thomas Jefferson to a jurist in his era,

"On every question of construction, carry ourselves back to a time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning can be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."

Considering that the founders accepted this as the only legitimate hermeneutic applicable to proper jurisprudence, I would prefer that the only judges considered for bench appointments would conform with originalist principles. But this pipe dream was only possible in a time when congress had zeal for their branch of government, rather than just their party affiliation. The result has been a proliferation of overreach and usurpations by both the judicial and executive branches. As stated above, an originalist judge is toxic to the liberal agenda because it denies them a "second chance" at imposing their ideological agenda, first by legislation, and if that fails, by means of adjudication.

While the Senate previously confirmed Garland to the Court of Appeals, the situation was a liberal judge replacing another liberal judge, on an already liberal court. Replacing Antonin Scalia on the SCOTUS is a different matter. The issue is not a personal dislike of Garland, or that he is not qualified or experienced. The problem is that as a conservative, I recognize how detrimental placing another legal positivist on the SCOTUS would be. I don't care about what is fair. I'm not concerned about reprisals for past offences, such as the late senator Ted Kennedy's vitriolic assaults on Bork and Alito respectively. This isn't get even for holding up the nomination of Miguel Estrada, until he finally dropped out after two years. Nor is it for the inquisition against the Clarence Thomas nomination a quarter century ago. This is about what another "living/breathing Constitution" judge means for the court. If liberals are achieving so much without iron-clad majority, imagine the damage they will do with one.

Of course Democrats, in between their fits of fuming over the Garland stalemate, will gleefully point out that with the potential election of Hillary Clinton, an even more liberal judge might be nominated. Okay, but we'll cross that bridge when we get there. There will also come a time when the tables are turned and I will complain that liberals are holding up a conservative judge – and yes, I won't like it. But what I will never say is that the Senate isn't doing its constitutional duty.

© Robert Meyer

 

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Robert Meyer

Robert Meyer is a hardy soul who hails from the Cheesehead country of the upper midwest... (more)

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