This column by ACRU Policy Board member Hans von Spakovsky and Elizabeth Slattery was published February 18, 2016 by National Review.
Someone should remind President Obama and Juan Williams what the Constitution actually says about confirming nominees. They seem unaware of how the process works. They also appear ignorant of the facts regarding the many judicial nominees the president has had confirmed over the past seven years.
First of all, the claim by Juan Williams that race “has something to do” with Republicans’ supposedly not moving on President Obama’s appointments is completely false — and the numbers prove it. The U.S. Senate has confirmed 321 individuals nominated to the federal bench during Obama’s presidency: 264 district court judges, 55 appeals-court judges, and two Supreme Court justices. That represents more than one third of the entire federal judiciary.
At the same point in the term of President George W. Bush, only 296 federal judges had been confirmed. That included two Supreme Court justices, the same number as Obama has placed on the Court. When Obama took office, ten of the 13 federal circuit courts of appeals had a majority of judges appointed by Republican presidents; today, nine are majority Democratic.
So the claim that President Obama’s judicial nominees are being held up, or that they have been opposed for racial reasons, simply doesn’t stand up to scrutiny. There is no evidence to support such a highly charged, racially divisive accusation, either by Williams or by the president if, as CNN is reporting, he tries to make the same claim about his Supreme Court nominee.
President Obama, who often talks about his experience teaching constitutional law at the University of Chicago, said at a news conference that the Constitution demanded that a president nominate someone for the Supreme Court and that the Senate either confirm or reject the nomination. The president certainly has the right — not an obligation — to nominate an individual to replace Justice Antonin Scalia on the Supreme Court. But Article II, Section 2 of the Constitution does not obligate the Senate to give the president its “Advice and Consent.”
A report by the Congressional Research Service on the history of appointments to the Supreme Court bears this out. From 1789 through today, the Senate has confirmed only 124 of the 160 nominations received from presidents. Of the 36 nominees who were not confirmed, only eleven were rejected in outright roll-call votes — 25 of the nominees were never voted on by the Senate. In fact, as Adam White, an experienced appellate-court litigator, points out:
The best evidence of the Senate’s power not to vote on nominations is found in the Framers’ rejection of an alternative approach to appointments. As an alternative to the “advice and consent” model, James Madison proposed a discretionary Senate veto. Under that plan, a president’s nominees would automatically be appointed unless the Senate mustered a majority vote against that nomination within a fixed number of days.
As White concludes, by rejecting this approach, the Framers put “the burden on the president (and his supporters) to convince the Senate to confirm his nominee.”
Chuck Grassley (R., Iowa), the chairman of the Senate Judiciary Committee, has pointed out that “it’s been standard practice over the last 80 years to not confirm Supreme Court nominees during a presidential election year.” Democrats who point to the confirmation of Justice Anthony Kennedy in 1988 neglect to mention that he was the third nominee for that slot — the vacancy occurred in 1987. The delay was caused by the unfair, vicious attack launched on Robert Bork by Senator Ted Kennedy. This really was the start of the politicization of the confirmation process for Supreme Court nominees.
So Barack Obama’s claim that the Senate is somehow obligated to vote on a nominee is grounded neither in the Constitution nor in historical precedent. He certainly did not believe it in 2006 when he tried to filibuster the vote on Justice Samuel Alito. He didn’t want a vote to occur, although now when it is his ox being gored, he apparently “regrets” what he did.
Fortunately, Obama was unsuccessful and the Senate confirmed another Scalia-type justice who believes in applying the plain meaning of the text of the Constitution and the law. In fact, President Obama has made it clear that no one should assume he will nominate a “moderate” for this Supreme Court slot. If he follows the pattern of the judges he has nominated so far, then he will certainly not put forward a “moderate” for the Supreme Court.
One final note on the terrible tragedy of Justice Scalia’s untimely death: what to do about the pending cases in which the Supreme Court justices already had cast their internal vote on how they would rule on the case. Everyone is assuming that Justice Scalia’s votes have to be discarded because the decisions have not yet been publicly released. But there is precedent for Chief Justice John Roberts to give effect to those votes.
In D. A. Schulte, Inc. v. Gangi (1946), the dissenting opinion by Justice Felix Frankfurter, and joined by Justice Harold Burton, specifically says that the “late Chief Justice [Harlan Stone] participated in the hearing and disposition of this case and had joined in this dissent.” Stone died on April 22, 1946; the date of the Gangi decision is April 29, 1946. Likewise, Justice Joseph Story noted the agreement of the late Chief Justice John Marshall in his dissent in New York v. Miln (1837), writing, “I have the consolation to know that I had the entire concurrence, upon the same grounds, of that great constitutional jurist, the late Mr. Chief Justice Marshall.”
Republicans need to resist any effort to confirm a nominee to Justice Scalia’s seat before the election in November. It should be up to the American people to decide, through their choice of president, who should be on the Court for the next several decades. Scalia was a constitutional anchor on the Court — a legal scholar who was pulling the Court back toward the rule of law and the proper application of the Constitution. Even President Obama has acknowledged that this nomination could change the balance on the Court: “This would be a deciding vote,” he said during a news conference Tuesday.
Republicans have a duty to make sure that “deciding vote” is cast by a justice who follows in the legal and constitutional footsteps of Antonin Scalia.