Jay Bookman

Opinion columnist and blogger with The Atlanta Journal-Constitution, specializing in foreign relations, environmental and technology-related issues

With court stance, GOP tries to rewrite Constitution by fiat

Mitch McConnell, Johnny Isakson, David Perdue and other Republican senators are refusing to even consider a Supreme Court nomination until a new president is elected and takes office some 10 months from now. It's a matter of democratic principle, they say.

"The American people are perfectly capable of having their say on this issue, so let's give them a voice," as McConnell puts it. "Let's let the American people decide."

That theme is echoed in a statement signed by 21 state attorneys general, including Sam Olens of Georgia, urging the Senate to block President Obama's nominee "to allow the American people to play their rightful role in the nomination of the next Supreme Court Justice."

"The American people deserve to have their voice heard in this process," they write in a letter addressed to Sen. Charles Grassley, chair of the Senate Judiciary Committee. "That is why we applaud you for exercising the Senate’s constitutional right to advise and consent, and giving the American people a voice in the selection of their next Justice."

Let's put it bluntly: That argument is a legal and constitutional embarrassment. It fundamentally contradicts  both the letter and spirit of the U.S. Constitution, and amounts to an effort to rewrite the Constitution not through the process of amendment but through sheer assertion. Every attorney general who signed onto it ought to be deeply ashamed to have done so.

It's pretty simple:  If the Founding Fathers had wanted to give "the people" the right to choose judges, if they wanted to "let the American people decide" such things, they could done so easily by making judicial offices elective. Instead, they did the exact opposite.

As Alexander Hamilton and his colleagues explained at the time, they did not want "the people to decide" because they wanted the judiciary to be insulated against the popular passions and whims that at times overcome the other two branches. They made a judicial appointment a lifetime post for the same reason, to insulate and protect the judiciary from the passions of the moment.

Under the Constitution, the people "decide" when they elect a president. And whether McConnell et al like it or not, the people have twice decided that Barack Obama should have the power to nominate Supreme Court justices. The Republicans have spent the last seven years trying to pretend that never happened, acting as if Obama were some illegitimate usurper of the office rather than our duly elected leader. What we're now seeing on the court nomination is simply the latest example of that destructive behavior. It has nothing to do with Obama being a "lame duck," and everything to do with mindless hatred of the man.

Again, let me point out to McConnell and the Republican attorneys general that under Article Three, Section 1 of the Constitution, the president "shall hold his Office during the Term of four Years."

Four years, says the Constitution. And having consulted Article One, Section 3 of the Constitution, which lays out the powers of the Senate, I can confirm that it is not the Senate's prerogative to arbitrarily decide that certain powers of the president will only last three years, or perhaps two, or whatever other time frame they find convenient.

Now, it is certainly true that the Constitution requires the Senate to offer its "advice and consent" on judicial nominations. That is part of its clearly expressed duty. The Founders established that system to ensure that the president kept the Senate in mind in making nominations and appointments.

However, anybody familiar with the background of Judge Merrick Garland and the strong support that he has enjoyed in the past from Republican senators would have to concede that Obama has indeed kept the Senate in mind in making this appointment. He has done his constitutional duty; the Senate refuses to do the same.

In Federalist Papers #78, Hamilton described how responsibility should shake out in times like this:

"The blame of a bad nomination would fall upon the President singly and absolutely. The censure of rejecting a good one would lie entirely at the door of the Senate; aggravated by the consideration of their having counteracted the good intentions of the Executive."

That is precisely where we are today. The president has made an excellent nomination, a fact that even the Republicans themselves do not attempt seriously to refute. If they now refuse to even consider that excellent nomination, then censure "would lie entirely at the door of the Senate, aggravated by the consideration of their having counteracted the good intentions of the Executive."

The situation calls to mind an old story, in which the various organs of the body are debating about which is the most important. The brain argues that it is the most important, because it is The Decider. The heart insists that it is most important, because it sends blood and oxygen to everybody. Even the stomach joins the debate, boasting about its ability to provide energy and nutrients.

However, when the lowly anus speaks up to say that it is the most important organ in the body, everybody else laughs and hoots and hollers, astonished at the audacity of such a claim.

So out of spite, the anus simply shuts down and stops working. Day after day after day, it refuses to do its job. And after a while, the stomach gets bloated, the brain becomes fogged, the heart can't pump and the entire body stops functioning, bringing it to the point of near death.

Who is being the anus here?

I think the people should decide.


¹In Federalist Papers #76, Hamilton defends putting that power in the executive branch because he presumes that "there would always be great probability of having the (presidency) supplied by a man of abilities, at least respectable." It is a proposition that we are in the midst of testing with the candidacy of Donald Trump.

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About the Author

Jay Bookman writes about government and politics, with an occasional foray into other aspects of life as time, space and opportunity allow.