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The “Let the People Have a Voice” Fallacy in Supreme Court Nominations

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I feel bad for Senator Mitch McConnell. He has been placed in a no-win situation by the nomination of Merrick Garland to fill Antonin Scalia’s spot on the Supreme Court.

On the one hand, Garland is about the best choice that Republicans could hope for from a Democratic president. Facing the very real prospect of a Hillary Clinton presidency and a Democratic Senate, McConnell certainly realizes that rejecting Garland now could result in a substantially more liberal Court next year.

On the other hand, though, McConnell no longer controls the Republican Party. Donald Trump and his supporters do. And they have made it very clear that they will not support another Obama appointment on the Supreme Court. What McConnell wants is irrelevant. If he allows the nomination to proceed, the Republican Party could crack down the middle.

So I understand why McConnell and other establishment Republicans are refusing to consider Garland’s nomination. And I understand why they are making incoherent and constitutionally invalid arguments about why they won’t. But let’s make no mistake about it: they are making incoherent and constitutionally invalid arguments that directly contradict the originalist position that Scalia himself was so devoted to.

Chief among these bad arguments is the one that McConnell lead with yesterday: “let the people have a voice.” I’m all for people having a voice, but what McConnell is actually saying here is, “let the people have a different voice than the Constitution allows”—a position that comes dangerously close to advocating for the direct election of Supreme Court Justices, which was considered, and flatly rejected by the Framers.

In Federalist 37, Madison explains that a functioning republic requires a delicate balance between accountability, which is achieved by frequent direct elections, and stability, which is achieved by longer terms in office:

The genius of republican liberty seems to demand on one side, not only that all power should be derived from the people, but that those intrusted with it should be kept in independence on the people, by a short duration of their appointments; and that even during this short period the trust should be placed not in a few, but a number of hands. Stability, on the contrary, requires that the hands in which power is lodged should continue for a length of time the same. A frequent change of men will result from a frequent return of elections; and a frequent change of measures from a frequent change of men: whilst energy in government requires not only a certain duration of power, but the execution of it by a single hand.

The system of checks-and-balances at the heart of the Constitution requires that the different branches of government change at different rates in response to the desires of the people. Majorities will get their way ultimately, but they will not always get everything they want immediately because the Constitution carefully limits the ability of a single election to change everything at once. Elections have consequences, but previous elections have consequences too; we cannot throw all the bums out at once because our ability to change things has been carefully structured by a Constitution that is concerned with both accountability and stability.

To the extent that one takes the Constitution seriously, then, Senator McConnell is wrong. The people should not have a voice in determining the next Supreme Court justice. Or, more accurately, the people have already had a voice and it is being ignored. Three years ago, the people elected Barack Obama and charged him with filling any vacancies that occurred in the Supreme Court for the next four years. One, three, or five years ago, the people charged their Senators with considering that nomination and either supporting it or opposing it.

Yesterday, the President of the United States did the job the people elected him to do. And the Senate, by refusing to do their job, told the people that their voice doesn’t really matter.

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391 comments
Wilbur Finfrock
Wilbur Finfrock

Isn't this the President that rammed Obama Care down the peoples throats??

bobj72
bobj72

Wilbur Finfrock, WHY is it you say The Affordable Care Act was "rammed down peoples throats?"  When it was, In Fact Legislated properly, and included GOP Input?  Is that just a misunderstanding on your part, or simply an Opposition Bias?.....

Suzanne Crockett-Jones
Suzanne Crockett-Jones

The people having a voice should include all elected officials doing their job in any process. Refusing to consider, advise, and vote is an abdication of the people's voice. [As would be failure to nominate on the part of the President.]

Byron Watkins
Byron Watkins

I think the Senate should do their jobs. Their duty now is to make sure that this LIFETIME appointment values the Constitution far MORE than any political affiliation or personal preference. If this describes Garland after a thorough investigation and there are no Separation of Powers issues between The Court and The Senate, then they should approve the nomination. It is also each Senator's duty to propose legislation that promotes the COUNTRY'S (and his state's) interests far more than any political affiliation or personal preference. Since they do this so poorly, I am not optimistic about the former. Pure Democracy doesn't work; the ancient Greeks proved this. That is why the Founders explicitly constructed a Constitutional Republic whose representatives are elected and whose electors are guided by popular votes. Our representatives have two essential faults: 1) They are so desperate to get re-elected that their first tendency results in an emulation of a pure Democracy. 2) Their backup plan as lobbyists on K Street results in their tenure representing the corporations that hire the lobbying firms instead of what's best for the country or the people.

electus1
electus1

Read Article 2, section 2. The part where it says the President "has the power, BY and with the advice and consent of the Senate..."

The President has no power to nominate unless it is given to him by the Senate. So they are doing their jobs.

bobj72
bobj72

@electus1; Ahem .....  … “When a VACANCY occurs on the SUPREME COURT, the PRESIDENT of the United States is GIVEN THE AUTHORITY, under Article II of the United States CONSTITUTION, TO NOMINATE A PERSON to fill the vacancy.  The NOMINATION IS REFERRED TO THE UNITED STATES SENATE,  where the Senate JUDICIARY COMMITTEE HOLDS A HEARING where the nominee provides testimony and responds to questions from members of the panel.  Traditionally, the Committee refers the nomination to the full Senate for consideration.” …


https://www.judiciary.senate.gov/nominations/supreme-court .....  

electus1
electus1

Don't say "ahem", then give some third party opinion. The article 2 they mentioned? I just quoted it. The President doesn't have the power to nominate unless it is given by the Senate. Just because we have been lax in how we have been carrying it out does not change the Constitution.

I hope that helped to clear your throat.

sporkov
sporkov

POTUS actuality does have the power to nominate.

"he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Councils, Judges of the supreme Court"

Nominate comes first, Advice and Consent second.

The honest question is, if the Senate will not provide it's Advice and Consent, should they be impeached? I am not only referring to this instance, but all instances were the Senate refuses to provide Advice and Consent regarding nominations. Does this rise to the level of Treason or High Crimes and Misdemeanors?

Any input? I see it to be a failed exercise as the Constitution states that the Senate has to be the body to try the official'site impeachment, and I find it highly unlikely that they would do this to one of their own.

electus1
electus1

Where did that first 'and' come from? Notwithstanding, the article states "by and with..."

In 18th century english, "by" means through. So the President is only appointed the power THROUGH the Senate.

Abraham Narvaez
Abraham Narvaez

I agree with the biden rule! His rule set the precedence! Do you actually think were that stupid? What hypocrisy!

Richard Crockett
Richard Crockett

Moreover, the contention that Obama should not appoint Supreme Court Justice because he is a "lame duck' President fails. If that is true (which it is technically not), every member of the House of Representatives is a lame duck and should not be allowed to vote on anything. They should not be allowed to do their job. One third of the Senate would also be lame ducks, and should not be allowed to do their job. Technically a "lame duck" is a person whose term is about to expire after his successor is elected. If lame duck status is assigned to any of these and they can't do their job, they should resign now.

Robbie Robertson
Robbie Robertson

These people who are supposed to be leading my country so disgust me that I don't know what to say. Five-year olds' behavior is more mature. What on earth have we done by empowering fools to govern this country?????

Kevin McNelly
Kevin McNelly

Checks and balances. Three branches of government. The public is so uninformed.

Michael Magee
Michael Magee

Does a leopard ever change its spots? Where are the American jobs, he stands in front of you with a red hat that reads (Make America Great Again) made in China, his clothing line made in China. He brings foreigners from all over the world to work in his hotels jobs that Americans can do he bought in 2000 polish workers to help build his hotel in New York so where are the American jobs if you're voting for Trump we're turning the hen house over to the fox,real change is Bernie Sanders

Gary Vaughn
Gary Vaughn

Nice try Democrats! We are sick of Obama!

bobj72
bobj72

HOW LONG does it take you to get over it?  You're FACTUALLY In The Minority.  The OTHER FOLKS Overruled You in 2008 & 2012.  It's a PERSONAL THING, I Know. .....

Judith Moore
Judith Moore

Congress did listen to the people for once! We don't want Obama picking nothing any more! He will be gone soon! Thank God! That man has just about ruined this country and our gov. was kissing his butt all the way until we finally stood up to them,thanks to #Trump2016! Things will change soon! America needs #Trump2016

Pat Atkinson
Pat Atkinson

It is payback time! Each party has done this when they got the chance

Philip Robe
Philip Robe

The Supreme Court nominee that Obama has selected will never be on the court

Kim Reed
Kim Reed

Yes do their part he deserves due process

Peter Pugliese
Peter Pugliese

he only wants to do his job when it fits his agenda.

Warren Gilbert
Warren Gilbert

Republicans need to consider this man if Hillary wins who she would nominate will make Obama's choice very good I am a Republican and Trump supporter but not stupid

Keith Krantz
Keith Krantz

By enacting the Biden Rule? Hey isn't that named after the current VP? Hey isn't HE the one that did this same thing for the Democrats? Hey, playing politics is dirty, quit whining, You shouldn't have done this to begin with.

Jimmy Earl Stout
Jimmy Earl Stout

No the Senate is finally doing their job, this what the American people elected them to do. The reason Obama wants this judge to get appointed is because this judge is strictly against the second amendment!!!

Steve Turk
Steve Turk

We do have a voice "" And we say the next president will pick a new judge not you Mr. O - VOTE TRUMP \U0001f1fa\U0001f1f8

Jan Shobe
Jan Shobe

Each Senator who refuses to do his/her job and follow the constitution of the United States of America, needs to be listed by name on social media, and voted out of office. While being replaced by a Senator who actually does his/her duties that tax payers money pays them to do. Collecting lobbyist money and tax payer money and hefty retirements for not doing their job, is absolute corruption and insanity.

Joe Lewis
Joe Lewis

There is a resolution specifically against this nomination.

Joe Lewis
Joe Lewis

Let's back up, best nominee the Republicans could hope for from the Democrats? You're not sane. I think you'll need to do some homework before rewriting this piece.

Randy Albro
Randy Albro

Not just record Harry Reid interview vice president said about a Supreme Court Justice being appointed in an election year I think you should go by that as you know it can't be both ways so if you don't like it why don't you pick up your toys you play with it and resign your office and go into obscurity just like Jimmy Carter

Mark Southern
Mark Southern

Obama is posturing. The senate did their job they rejected him.

Ronald Love
Ronald Love

resign and you ont have to worry about it. you re fired.

Charles Lindsay
Charles Lindsay

no,the president did his job and the senate did their job for once.

Christopher Lee
Christopher Lee

Scalia was murdered by this administration. Let's not forget how this seat became available.

Roger Anderson
Roger Anderson

This jerk is not our dictator, We the people will cast our vote in November and then and only then will the Supreme JUDGE be named because we will vote out the dead beats and the congress will have to do their jobs. Which has not been done for the past seven years and two months and eighteenth days!

Marc Mousseau
Marc Mousseau

The Senate IS doing the job voters elected it to do in November 2014.

B-Jay Matthews
B-Jay Matthews

its because the nominee isn't worthy of taking the spot of justice. his attacks on the second amendment are repulsive and one sided.

Shawn Loden
Shawn Loden

Michael Austin an independent? ROFLMAO

Martin H Darden
Martin H Darden

BS the senate does not have a time limit on which to have a hearing. GET THE F^ Over it.

Pamela Brown
Pamela Brown

By. Trying to boot Trump out the way they are doing it-- shows the people that their voice doesn't matter.

John Revelle
John Revelle

Advise and consent. Seems that they are advising.

Rick Sergent
Rick Sergent

No need for argument, there is no time frame for review or approving a Presidential recommendation. The Congress may also decide not to have the same number of Justices - the number of Justices is set by Congress. Perhaps not popular but within constitution. The sudden passing of Justice Scalia is not the fault of Congress and in no way places any hardship on the nation. Obama is playing politics.

Gary Grudem
Gary Grudem

Not the choice of the People only the Libatards !!!!!!!!!!

Gary Markes
Gary Markes

WHY DID BIDEN RAISIE THE ??? During A Former Presidential ELECTION YEAR???

Mark Hale
Mark Hale

Why do they not an anti Gun pro abortion SC justice.... Dahh....

Nancy Shoemaker
Nancy Shoemaker

We the people have seen what this loser has done to this country he needs to go on an extended golf vacation till his term is up

Ross Willhite
Ross Willhite

No , Obama can live with it , it is congresses option and they are not required to bend over for him ! His executive action circumventing Congress has , as his so called pastor Jerimiah Wright would say , "the chickens have come home to roost" !