While I attempt to steer this blog clear of partisan political politics, sometimes politics provide the best possible examples of “Lies and Damn Lies.”
Just hours after the untimely death of Supreme Court Justice Antonin Scalia on February 13, presidential candidate Senator Ted Cruz declared that there is “80 years of precedent of not confirming Supreme Court Justices in an election year.” Cruz used this “80 year precedent” to support his own position and to add support to the announcement already made by Senate Majority Leader Mitch McConnell that the Senate would not act upon any nomination to the Supreme Court made by President Obama.
As debate moderator John Dickerson of CBS pointed out, Cruz’s assertion was clearly factually incorrect since Supreme Court Justice Anthony Kenneth, a Reagan appointee, was confirmed in 1988, an election year. Tellingly, the debate audience applauded Cruz’s incorrect assertion and booed Dickerson for pointing out the truth. While Dickerson did not point it out, 1988 was not only an election year, it was an election year in which a two-term sitting President could not run for reelection. In other words, exactly the same situation we face today. If Dickerson had pointed out that truth, the situation may have gotten ugly.
In a February 14 interview on “Meet the Press,” Senator Cruz engaged in a bit of spin-control intended to make it seem as if he was right all along when he repeated his debate assertion with a few carefully inserted modifications. “It has been 80 years since a Supreme Court vacancy was nominated and confirmed in an election year. There is a long tradition that you don’t do this in an election year.” By adding in “nominated and confirmed in an election year,” Cruz was clearly attempting to side step the unfortunate fact that – contrary to his debate night assertion – over the past 80 years no fewer than five Supreme Court justices had been nominated and/or confirmed during an election year.
Senator Cruz and his supporters appear to believe that the candidate’s restated assertion somehow put the whole issue to rest. Nothing could be farther than the truth.
Lies, Damn Lies and Statistics
Senator Cruz’s artfully worded revised statistical assertion is factually correct; no Supreme Court justice has been both nominated and confirmed in an election year in 80 years. The second sentence of his revised statement — the one in which he asserted that “[t]here is a long tradition that you don’t do this in an election year” — was pure deception. There is no such tradition nor would such a practice be allowed under the Constitution. Precisely because the complete “correction” issued by Senator Cruz used a statistic to support a falsehood, it perfectly fits the Twain/Disraeli admonition that there are “lies, damn lies and statistics.”
Senator Cruz (among numerous others, including Senate Majority Leader McConnell) has repeatedly used this intriguing little statistic to argue that there is a “rule” or “tradition” that when vacancies occur during the final year of Presidents’ terms, Presidents uniformly and magnanimously choose not to appoint a replacement, instead leaving the choice to their successors. That is 100% false. For at least 120 years, no President has ever failed to nominate a Supreme Court justice when a vacancy occurred in the final year of his term. Overall in American history, roughly one-third of all Presidents have nominated Supreme Court justices during an election year. One-third.
You may be wondering how both of these statistics can be true – that no Supreme Court justice has been both nominated and confirmed in an election year in 80 years and that no President in at least 120 years has ever failed to nominate someone to fill a vacancy that occurred during an election year. The answer is actually not very difficult to understand. Despite their own personal political leanings, most Supreme Court justices strive to honor the Constitution and the intent of America’s “founding fathers” by keeping the Supreme Court out of politics – and politics out of the Supreme Court. One way they do this is by avoiding resigning in an election year when political pressures are naturally acute. Justices tend to resign early in a President’s term or not at all. While I would also assume that Supreme Court justices would prefer not to die in an election year, as Justice Scalia’s death (and all of human history) shows, some things are beyond our control.
A much more honest – but less politically useful – way of citing the same fact that Senators Cruz, McConnell and others have been tossing around since the death of Antonin Scalia is that it is rather uncommon for unexpected vacancies on the Supreme Court to occur in an election year, but when they do, Presidents always nominate replacements — and the Senate always acts on those nominations.
Honoring Justice Scalia’s Legacy
Justice Scalia will undoubtedly be remembered as person who made “Constitutional originalism” a serious school of judicial thought. Some would even argue that he originated the movement, although that assertion is difficult to “fact check” since the answer depends on exactly what constitutes “Constitutional originalism.” Without a doubt, however, Justice Scalia took a concept that rarely entered either public or scholarly legal debate and brought it squarely into the mainstream.
According to Justice Scalia himself, the core tenant of Constitutional originalism is that the Constitution is not a “living document” that needs to be constantly re-interpreted based upon changes in society. Instead, Scalia famously argued that “the Constitution is dead.” He did not say that to demean the document. The opposite is true. In Scalia’s view, the Constitution is a document for which the meaning was permanently fixed on the date of its adoption in 1789. In his view, the Constitution does not change with political fashion or public opinion. It is, instead, absolutely fixed and should only be interpreted as it was originally written and intended. The Constitutional originalist method is therefore to look at the exact words in the Constitutions and, if they are not sufficiently clear (which is very often the case given the brevity of the document), to look at the original intent of America’s founding fathers as expressed in their actions, beliefs and writings.
The uncomfortable reality facing Senator Cruz (who clerked for Justice Scalia at the Supreme Court), Senator McConnell and others is that both the words and the original intent of Article 2, Clause 2 of the Constitution are perfectly clear. It requires that when a vacancy occurs, the President must appoint a replacement. There is absolutely nothing in the Constitution to suggest that the President should — or even can — decline to make such a nomination if a Supreme Court vacancy occurs in an election year. The Constitution places this requirement squarely on “the President alone,” leaving no room for the Senate or even Presidential candidates vying for his seat to interfere.
Senator Cruz and others have argued that it would be “more democratic” to allow the American people a stronger voice by making the next Supreme Court nominee an election issue. There really cannot be any question that Senator Cruz’s argument runs completely counter to the intent of the founding fathers. Their strongest argument in favor the adoption of the Constitution was that it created a government of three equal but very different parts. Two of those three parts were to be elected, either directly or indirectly. Their third part – the Supreme Court – was to remain outside the political process and not subject to politics. America’s founding fathers were very blunt when explaining their reasoning for establishing such a non-democratic branch of government. They were deeply concerned about the threat posed by a potential “tyranny of the majority.” Without some type of restraint, they argued (based upon a depressingly accurate understanding of human history), would it not be completely democratic for 51% of the voters to decide to deprive the other 49% of their rights, their property or even their lives? The Constitution was crafted not to make the United States a perfect democracy, but to make it a controlled and stable one in which minority rights are protected. The “controls” were intended to protect liberty and individuals’ freedom from the “excesses” and “passions” of the masses — passions that reach a pitch in an election year.
If anyone needs further proof of what the founding fathers intended should happen in the event that a Supreme Court vacancy occurs in an election year, the historical evidence is beyond doubt, as shown by the case of Chief Justice John Marshall. Shortly before John Adams, one of the leading “founding fathers” and the second President of the United States, was due to leave office, Chief Justice Oliver Ellsworth resigned. This occurred not only in an election year; it happened in that narrow window of time after Adams’ successor, Thomas Jefferson, had been elected but before Jefferson was officially sworn in as President. During this interim period, President Adams was a genuine “lame duck” since his replacement had already been elected. Nonetheless, Adams nominated John Marshall on January 20, just weeks before Jefferson was due to be inaugurated as President. Marshall was confirmed by the Senate on January 27.
For his part, President-elect Thomas Jefferson was not reticent in letting everyone know that he would like outgoing-President Adams to choose not to nominate a replacement for Ellsworth. Politics is politics, so Jefferson’s position is easily understandable. Despite his own desires, however, Thomas Jefferson never once asserted that President Adams did not have the right to nominate a new Chief Justice, nor did he state or imply that the Senate should not act on the President’s nomination. When President Jefferson took office, he did not hide his chagrin at being deprived of an opportunity to name the Chief Justice but he never once attempted to block John Marshall’s assumption of his office or to recall or impeach him. In short, through his actions Thomas Jefferson was perfectly clear on the difference between what he as a politician would like to see happen and what the Constitution required of him as President.
The precedet is clear and important. Despite his own political desires, Thomas Jefferson took his oath of office “to preserve, protect and defend the Constitution of the United States” seriously. As a result, he followed the letter and spirit of the Constitution even when it thwarted his own political ambitions.
Back to the Present
This brings us to the real– and the troubling– question that is at the heart of the growing political drama over Justice Scalia’s successor. Not only is the Constitution clear, so is historical precedent. Supreme Court justices have been confirmed by the Senate 17 times during Presidential election years, starting with nominations made by our founding fathers.
The Constitution requires the Senate to fulfill its duty for “advice and consent.” The Senate is absolutely free to decide not to confirm a Supreme Court justice. Indeed, over the course of American history 11 nominees have been rejected by the Senate. The number grows if one also includes nominees who withdrew from consideration after it became obvious that they would not be confirmed. There has never been a case, however, when the Senate refused to consider a nominee. Never. The reason for this is simple: the Constitution does not give the Senate the option of simply ignoring a nominee. As Senator Mitch McConnell personally argued in 1992 and 1995, the Constitution requires that the Senate either confirm or reject a nominee.
To justify his decision to ignore his Constitutional duty to provide “advice and consent” on a President’s nominee to the Supreme Court, Senator McConnell has recently abandoned his previous reference to the unwritten (and unfounded) “Thurman rule” in favor of a newly-discovered “Biden rule.” The story line goes that when our current Vice President was a Senator, he supported the same position McConnell holds today. The problem is that the assertion is false. Senator Biden never argued that the Senate should refuse to consider any nominee made by President George H.W. Bush during his final year in office. Instead, what he actually did was urge the Senate to reject any nomination that President Bush put forward. It is true that Senator Biden quickly accused politicians and the media of “misinterpreting” his comments and that in reality Senator Biden phelped to push through the rapid confirmation of multiple Supreme Court justices nominated by President Bush. Nonetheless, his words in 1992 were unfortunate and inappropriate. Even when caught up in partisan rhetorical excess, however, Senator Biden never stated that the Senate should ignore its Constitutional responsibility to provide advice and consent. Instead, he urged that the Senate vote to reject any nominee.
Senator McConnell has moved well beyond anything suggested by Vice President (then Senator) Biden. Realizing that the Senate would face considerable pressure to approve an undeniably qualified candidate (or embarrassment in rejecting such a candidate), Senator McConnell has stated his intention to avoid political unpleasantness by refusing to do his Constitutionally-mandated job of providing advice and consent. In McConnell’s world, avoiding political embarrassment is clearly more important than fulfilling his Constitutional duty. That is troubling.
The Real Danger Facing the United States
In the final analysis, the question America is facing today is much more troubling that this year’s election politics. The real question is whether politicians are free to ignore the Constitution and violate its provisions when they find it politically expedient to do so. The drafters of the Constitution made their views clear by defending, protecting and following the Constitution to the letter even when their personal political desires pulled them in another direction. Do American politicians serving in the Senate today still take their oath of office seriously? If not, the American people face a very serious threat. While I sincerely hope that Senator McConnnell is simply engaging in the type of over-the-top political rhetoric that led then-Seator Biden to make his comments more than 20 years ago, I fear that a more fundamental shift is taking place and that our elected officials now regard the Constitution as nothing more than a useful symbol to be used when convenient and ignored the rest of the time. That is a scary thought.