With the SCOTUS nomination debate, the different sides are doing exactly what the majority and the minority always do. The majority sits there doing nothing, since that is exactly what they want to do. The minority argues that the majority is mean and not following the rules. As is generally the case, the minority is wrong, because our system is rule of the majority with minority rights. Das ist alles.
Since the Republican side of the debate is easy, “We are going to sit on our butts and do nothing,” I will concentrate on the main Democratic argument. Namely, “the constitution is being torn to shreds!”
First, let us all laugh at the complaints of an abrogation of the US Constitution. Why should we laugh? Because Antonin Scalia was always saying that the original meaning of the constitution is what’s important, and the Democrats/liberals like the Court to decide on a living constitutional basis. I guess either way is fine, consistency is not needed, as long as you win. (Republicans and conservatives tend to flip flop just as much.)
With that said, let us get to the meat of their argument. Stephen Henderson with the Detroit Free Press lays it out pretty well. (I’m going to respond to each point before moving on to the next.)
He states that there is no precedent for the hold up, even though he only goes back to 1900.
I know that there was a period of two years in the 1800s where there was a vacancy on the Supreme Court, because the Senate would not accept any of the nominees. Also, when it comes to constitutional arguments, purposefully ignoring 112 years of constitutional history creates a big enough hole to drive a double decker bus through. ‘Nuff said.
Secondly he states that, “a plain read of the Constitution suggests [that the “advise and consent” clause] really isn’t enough authority to permanently block any president from fulfilling his or her constitutional duty.”
Where this idea came from? I have no clue, but it is one of the Democrats talking points. While I’m not sure if they intended it, but by saying that the president has a constitutional duty to fulfill the seat, and that the Congress does not have the power to stop it, they are saying that the advise and consent clause means that all they can do is say yes to every nominee. Last time I checked that would go against 228 years of precedence, and not to mention the gutting of our checks and balances.
The other thing to consider is that there are many times the Senate has not dealt with their advise and consent duties, just look at the signed but not ratified treaties. For example, in 1977 President Carter signed the International Covenant on Civil and Political Rights, but the Senate didn’t act on that until 1992, when they gave their consent. That’s a fifteen years difference, so the precedence stands that the Senate can take as long as they want.
If we actually used this “plain reading” of the Constitution, which Henderson wants us to, we would also be getting rid of the treaty ratification process, because it reads exactly as the appointment of officers. This would make the signing of a treaty the only thing needed to make it law, we would no longer need the consent of the Senate. Now that’s scary.
Beyond the above two Democratic arguments, Henderson is right that such a delay will cause a further wedge in governing with the two parties we have, but it is only getting worse anyways, so does it really matter if it continues along the same path?
Either way, this is all politics, but we need to watch out what is said on how to read the Constitution, and coming up with a “plain reading” is dangerous, because we certainly don’t want to fall down the rabbit hole, and a “plain reading” would surely cause that.