Should the People Really Decide?

Since the death of Supreme Court Justice Antonin Scalia, Republican Senate Majority Leader Mitch McConnell has been circulating a curious petition entitled “The American People Deserve a Voice in Deciding Our Next Supreme Court Justice!” to justify his declaration that Republicans will not give Obama’s nominee a hearing. Justice Scalia, a strict constitutionalist, would have been terrified by the title of this petition. Even though the petition’s sentiment has received fervent endorsement from prominent Republican senators, such as presidential hopeful Ted Cruz and Senate Judiciary Committee Chairman Chuck Grassley, the facts suggest that McConnell either vehemently disagrees with his own petition or has not thought out its implications.

Republicans concerned with upholding the Constitution should be deeply angered by McConnell’s petition, which is stunningly hypocritical. The petition runs deeply against the grain of American conservative politics: it disrespects the balance of power designed by the Founders and leads Congress onto a slippery slope. Actions that follow from this petition will weaken this country’s commitment to the Constitution and irreparably damage the conservative cause.

First, the American people, far from lacking a “voice” as McConnell claims, used their voice when they elected Barack Obama to serve as president, who according to Article II, Section II of the Constitution, has the power to “nominate, and . . . appoint . . . judges of the Supreme Court.” The American people have already voiced their opinion on who ought to nominate justices from January 2013 to January 2017, just as they will voice their opinion this November on who ought to nominate justices from January 2017 to January 2021.

Many leading Republicans, including McConnell, have argued that Obama should not have the power to nominate justices with only a year remaining in his presidency. However, for Republicans who revere Justice Scalia, a man who believed “the Constitution is not one that morphs,” it is curious how Article II, Section I has morphed from “[The president] shall hold his office during the term of four years” (Article II, Section I) to  “The Senate majority can decide when in a presidential term the holder of that office should cease fulfilling the legitimate duties of the office.” Such a notion would allow for government action independent of the Founders’ intent, precisely what Scalia most feared, and what Alexander Hamilton warned against in Federalist 78, when he condemned “the legislative body [becoming] themselves the constitutional judges of their own powers.”

Furthermore, had the Founding Fathers believed the people should have a voice in deciding the next Supreme Court justice, they would have explicitly said so. In an attempt to vindicate his belief in a more expansive role for the Senate in the nomination process, Senator Grassley (R-IA) argues that the president and the Senate are “co-equal authorities.” The notion that the Senate’s constitutional role of “advice and consent” in a Supreme Court nomination is co-equal with “nominate, and . . . appoint” (Article II, Section II) is ludicrous. But in any event, even Grassley concedes that there is no role for the people in the nominating process. In Federalist 76, Hamilton considers numerous potential means of nominating Supreme Court justices, not one of which includes the American people. Indeed, he dismissed the idea of the people making the decision: “The exercise of [appointment] by the people at large will be readily admitted to be impracticable.”

Hamilton goes on to state, “One man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even of superior discernment.” The Founding Fathers deliberately established a judiciary that was independent and designed to resist rapid swings in public opinion and uphold the Constitution even in the face of public opposition. According to Hamilton in Federalist 78, the “independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects” of attacks by the people. Therefore, the Republicans’ suggestion that the Court should be somehow subordinated to the people runs contrary to the Founders’ intent and would prevent the Supreme Court from protecting the people from their own impulses. For the Court to remain truly independent, its justices need to be appointed by the president.

If Republicans truly want the American people to have a voice in the nomination process, they do not even have to wait until November, as polling has actually given the American people a voice. According to the most recent CNN/ORC poll, 58 percent of Americans believe Obama should choose the nominee, 64 percent of Americans—and 55 percent of Republicans—favor giving Garland hearings, and Americans favor Garland’s confirmation 52 percent to 33 percent. After reviewing these polls, Republicans can readily identify the American people’s opinion.

Republicans who want the American people to have a voice should be careful what they wish for. Ironically, regarding some of the crucial social issues that the Supreme Court will hear in the near future, the American people’s voice cries out for a liberal justice. Most Americans support gay marriage, 55 percent of Americans support stricter restrictions on gun sales, more Americans are pro-choice than pro-life, more than two-thirds of Americans support Obama’s clean power initiative, and an overwhelming majority supports a pathway to citizenship for undocumented immigrants.

These polls suggest that McConnell’s petition not only runs against the Constitution, but also against conservatives’ legislative agenda. If Republicans genuinely believe the American people should have a say in the appointment of Supreme Court justices, why shouldn’t every question be submitted to the people? Perhaps Senate Republicans, who voted against a background check law when 91 percent of the American people supported it, should reverse their position on gun control. Perhaps they should also support limiting emissions from coal-powered plants as well, since 65 percent of Americans support limiting coal plant emissions. If Republicans establish that the American people should have direct input in nominating Supreme Court justices, why can’t the Democrats demand that the American people have direct input on gun-control and carbon emissions regulations?

On the other hand, if Republicans succeed in preventing a Supreme Court nomination from proceeding in the final year of Obama’s presidency in order to give the American people a voice, why should the federal government proceed with any major decisions at all during the final year of Obama’s term? For instance, earlier this year, Republicans in the Senate pushed for a war authorization bill. According to this new Republican doctrine of giving the American people a vote on key issues, the United States should declare itself unable to go to war in the final year of a presidential term. After all, if Supreme Court nominations are contentious and important enough to warrant a wait, then certainly a declaration of war is. If Republicans establish a precedent that the American people should contribute to choosing the Supreme Court appointment, it is a slippery slope to direct popular government, which is contrary to the Constitution and, judging by public opinion on many issues, may not be a road the Republicans wish to go down.

Finally, if Republicans refuse to even give Obama’s nominee a hearing, why should the Democrats, should they gain control of the Senate (as is likely), ever consider a Republican nominee? The Democrats can ask for a referendum on any Republican policy they choose, effectively rendering future Republican attempts to govern—in Congress or the White House—impossible. For the sake of the Republican Party, for the country at large, and for the Constitution, McConnell and his fellow Republican leaders should jettison their petition. The American people should not get a[nother] voice in the nominating process.

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