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Senate Fulfilling–Not Failing–Constitutional Duty by Letting Americans Speak on Scalia Replacement

October 17, 2017

By Matthew Bowman

Listen to Matt Bowman discuss the appointment of a new justice on the Freedom Matters Podcast:

The Constitution provides an important check on imperial executive power. The Senate is exercising that check right now by protecting the People’s rights in the electoral process on a generation-shaping decision: who replaces the late U.S. Supreme Court Justice Antonin Scalia.

Article II of the Constitution says that Supreme Court nominees require two things to be confirmed: the president’s nomination and the Senate’s “advice and consent.”

The Constitution does not limit how, or why, or in what circumstances the Senate can withhold its consent. The Senate has that authority to protect the country from a president that would affect radical transformations to the rule of law and the Constitution itself.


Critics of the Senate have no constitutional leg to stand on when they attack Senate leadership for declaring they will wait until after the election to consent to any Supreme Court nominee to replace Justice Scalia.

Meet the Press host Chuck Todd erroneously insisted to presidential candidate and Florida Sen. Marco Rubio that the Senate was acting outside its power when he asked “aren’t they obligated to at least go through the motions here? Why not go through the advice and consent [process]?”

The Senate is going through the advice and consent process. It has advised the president that the People should vote on the Court’s direction in November. And the Senate majority is withholding consent until then by declaring there will be no hearings and no votes. They are letting the People decide whether to affirm a deciding vote that would legalize partial birth abortion, essentially declare the Second Amendment void, and rubber stamp an ideologically-aligned president’s executive orders on a host of issues.

The Constitution does not require the Senate to hold a vote. It requires the Senate to be a body that takes care of the needs of those who elected and entrusted them with their expressed will. The People elected a new Senate majority in 2014 as a check and balance on President Obama’s executive overreach, including his plan to radicalize the Supreme Court. The Senate is exercising its authority to allow the American people to decide in November how far they are willing to let the Court go.

None of the alleged counterexamples of court vacancies in election years, such as the ones listed by SCOTUS Blog’s Amy Howe, are remotely parallel to this situation.

The most famous is the 1987 vacancy by Justice Lewis Powell, eventually filled in the 1988 election year by Justice Anthony Kennedy. But the vacancy occurred 17 months before the 1988 election, not nine months as here. The confirmation involved a Republican president replacing a justice appointed by another Republican. In the interim, during which Senate Democrats ushered in an era of unprecedented hostility surrounding Supreme Court nominations. A new verb was invented – “Borked” – to describe the mendacity directed at the eminently-qualified, but eventually-rejected nominee Judge Robert Bork, who preceded Kennedy as the nominee.

Most of Howe’s examples fail by this same comparison, on three significant counts. Take, for example, President William Howard Taft appointing Mahlon Pitney to replace John Marshall Harlan in 1912.

  • Both the new and the replaced justice were appointed by Republican presidents.
  • The people had elected a Republican Senate to support President Taft’s nominees.
  • Taft was not a lame duck president; he was up for reelection in that year, 1912, when the voters could (and did) hold him accountable (he lost the 1912 race).

The parallel here would be if Justice Ruth Bader Ginsburg, a liberal appointed by President Bill Clinton, had retired, President Obama nominated a replacement, the People had elected a Democrat controlled Senate in 2014 to confirm her, and this was the end of Obama’s first term when he was up for reelection, not his second term when he was leaving office.

The current Senate’s objections have nothing to do with that kind of situation. President Obama wants to completely upend the balance of the Court, swinging it to an extreme over a Senate that the People elected as a check on his agenda, at a time when President Obama will not be held accountable at the ballot box again.

Howe’s other examples have similar flaws. Democrat President Woodrow Wilson’s two Supreme Court appointments in 1916 went through a Democrat Senate when Wilson was on the 1916 ballot running for a second term. Republican President Herbert Hoover did a parallel Republican-for-Republican swap in 1932 during Hoover’s own reelection year. Democrat President Franklin D. Roosevelt and the Democrat-controlled Senate confirmed a justice in 1940 when Roosevelt was up for reelection. President Dwight Eisenhower was up for reelection when he made a recess appointment in 1956. That appointment expired automatically four months later, and the voters reelected Eisenhower by a landslide.

If a Republican replaces Justice Scalia, in theory, nothing will change the ideological balance of the Supreme Court. That status quo includes decisions liberals like, and other ones conservatives like. If President Obama flips Scalia’s vote, the Court will take the most extreme turn it has ever taken.

The People elected a new Senate in 2014 to forestall exactly that kind of radicalization by this administration. The Senate is not failing, but fulfilling, its constitutional responsibility by holding no hearings and no votes until the People can decide in November if they like the Court we have or will call for something radically different. 

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