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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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