Robert Meyer
The SCOTUS nomination follies
By Robert Meyer
October 1, 2020

Possibly one of the silliest arguments politicians make is to label their opponents as hypocritical, as if it were a noteworthy or unique revelation in the realm of politics. Chuck Schumer has leveled that accusation at Mitch McConnell, because he denied Obama's SCOTUS nomination in the last year of his presidency, yet is pushing through Trump's nomination in the last year of his first term.

Of course if we would have gone back a few years earlier, we could have pointed out that Obama himself articulated a policy that he later condemned when applied to his own SCOTUS nomination.

    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's observation simply pits the positive ideal against the normative practice. SCOTUS nominations by Republican presidents have always faced the very standard articulated by Obama during the post Bork era. Only recently have Republicans taken any interest in challenging nominations by Democratic presidents.

In 2016 McConnell simply applied the Obama rule to Merrick Garland. McConnell's big mistake was getting too cute and nuanced about the reasons for blocking a vote on Garland. McConnell actually did it because he had the votes in the Senate to do it, plain and simple. No other justifications needed.

Of course, the difference between 2016 and 2020, was that in the former year the Senate and Presidency were opposing parties, whereas today they are the same party. A Senate Majority Leader of either party, not acting precisely as McConnell had done, would be run out of Washington and face the end of their political careers, courtesy of the base of their own parties. To suppose otherwise is absurdity of the highest order. As Obama himself once mused "Elections have consequences." What you are seeing now is simply the consequences of an election. Saying that a president, should, or cannot do a certain thing in the last year of their term is an entirely arbitrary standard without constitutional obligation. I put this sort of request in a category I call "Here is your pistol, please shoot yourself in the foot."

Naturally the national media is doing their part to make the irrelevant seem important. We are told that polls show a majority of people want the next president to appoint a justice to the SCOTUS. Even if the poll is accurate, how is it actually meaningful? In November of 2016 we took a legally binding poll, called an election, that gave Donald Trump and the Senate Republicans the authority to govern until January of 2021.

As for myself, I subscribe to the Obama rule, which "...calls for meaningful advice and consent that includes an examination of a judge's philosophy, ideology, and record..." It goes without saying that our litmus sets would be somewhat different though. In placing this principle in operate, we avoid flimsy rationales, such as maintaining an ideological balance on the court, or following some precedent that has no constitution purpose.

When our founders contemplated the role of the courts, they defined the proper method of adjudication.

James Madison reasoned:

    I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution.

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.

If we synthesize the pronouncements of these two prominent founders, we would conclude that adjudication based on standards like personal preferences, foreign laws, opinions polls or evolving cultural perspectives have no role in constitutional interpretations.

If I were on the Judiciary Committee, I would simply ask whether nominees agreed with the Madison/Jefferson standard. If not, they wouldn't get my vote regardless of the political party nominating them. By not adhering to this hermeneutic, we have nominated judicial activists supported by Democrats and some judicial clunkers nominated by Republicans.

© 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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