Obama’s Ahistorical Scolding About the Supreme Court
By BETSY MCCAUGHEY and MICHAEL B. MUKASEY April 11, 2016
President Obama is hitting the road and the airwaves trying to convince the nation that the Senate has a constitutional duty to consider his nominee, Merrick Garland, for the Supreme Court. On Thursday the president said at the University of Chicago that Republicans’ refusal to consider Mr. Garland threatens a “dangerous” politicization of the courts “that erodes the institutional integrity of the judicial branch.”
Not so fast. History and the wording of the Constitution teach otherwise. The framers expected that judicial nominations would be political matters-and even that the Senate sometimes might deliberately ignore a president’s nominee.
That is exactly what the upper chamber did after Associate Justice John McKinley’s death in July 1852. The political climate then was intensely partisan, as it is today, and a presidential election loomed that November. In August, President Millard Fillmore, a Whig, nominated Edward A. Bradford, a highly regarded Louisiana lawyer and a graduate of Harvard Law School, to fill the vacancy.
But the opposition Democrats controlled the Senate and expected to win the presidency in a few months. The New York Daily Tribune acknowledged that Bradford was “deserving and qualified” but predicted that the nomination would fail. The Senate refused even to consider Bradford despite his outstanding qualifications. As expected, Democrat Franklin Pierce won the presidency and made his own nomination the following spring.
That wasn’t the only time lawmakers snubbed a Supreme Court nominee for political reasons. In the 1840s, President John Tyler also faced a hostile Senate. Four of Tyler’s five Supreme Court nominees were blocked, including one-Reuben Walworth-whose nomination the Senate completely ignored. After the Civil War, President Andrew Johnson, a southern Democrat, couldn’t get the Republican-dominated Senate to consider his nominee, Henry Stanbery.
That is how the framers planned it. The wording of the Constitution and the decisions they made in the summer of 1787 show they wanted the Senate to control the confirmation process, free to consider or ignore a nomination. The Constitution directs that the president “shall nominate,” but he may appoint only with the advice and consent of the Senate. There is no direction that the Senate “shall” provide its advice and consent, no corresponding obligation on legislators to act.
At the Constitutional Convention, the framers considered several different ways for judges to be selected: by the House of Representatives, the Senate, or the president. On July 18, 1787, delegate Nathaniel Gorham of Massachusetts proposed allowing the president to appoint, provided that the Senate consented by majority vote. This replicated a provision of the Massachusetts Constitution of 1780 that Gorham used as a model.
Delegate James Madison, who favored a strong presidency, objected. He proposed instead allowing the president’s appointment to become effective “unless disagreed to” by the Senate within a specified number of days. Under Madison’s proposal, inaction was equivalent to approval. But Madison was outvoted. A majority of the framers wanted the Senate to control the fate of a nominee, not the president.
George Mason, another Virginia delegate, explained why the framers were so reluctant to put the president in charge of appointments, calling it a “dangerous prerogative.” Mason warned about a “false complaisance” that would make Senators reluctant to oppose a nominee if that meant openly sparring with the president. Ultimately, the convention approved Gorham’s proposal.
That is why, over the last two centuries, 33 nominees to the high court have failed to win confirmation. Of those, five were simply ignored, which is what the Democrats fear might happen to Merrick Garland.
The court has taken up many politically charged issues since the 1960s, from contraception to abortion to gay marriage, often with at least tacit acceptance by the political branches, which sometimes prefer to avoid responsibility for resolving controversies. Thus, it is at least reasonable to argue that filling the current vacancy should be part of the political process of selecting a new president.
The importance of giving the electorate a voice is even greater when you consider the stature of the late Justice Antonin Scalia, whom Mr. Garland is being nominated to replace. Judge Scalia was arguably the most consequential justice in a generation, the one who shaped the argument over how to read the Constitution to the point that the debate was conducted on his terms-what did the drafters really mean?-even when the result was different from the one he favored.
President Obama says Merrick Garland will “help to burnish the sense that the Supreme Court is above politics.” Wishful thinking: The framers knew that politics would play a role in judicial nominations, and it didn’t take long. Both George Washington and James Madison made nominations that were deep-sixed for political reasons.
We should disregard claims by either side that the other is shirking its constitutional duty. The appointment of justices always has been infused with politics.
Ms. McCaughey, a senior fellow at the London Center for Policy Research, was formerly lieutenant governor of New York (1995-98). Mr. Mukasey served as U.S. attorney general (2007-09) and a U.S. district judge (1988-2006).