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Constitution is on Senate's side in battle to replace Scalia

Ramesh Ponnuru

By Ramesh Ponnuru Bloomberg View

Published Feb. 19, 2016

President Barack Obama has said "the Constitution is pretty clear about what should happen now" that Justice Antonin Scalia's death has left a vacancy on the Supreme Court. What should happen now, he said in a press conference this week, is that he should nominate someone to fill that vacancy and then the Senate should approve or disapprove the nomination.

Republican senators have said they will not confirm any Obama nominee this year, allowing the winner of this year's presidential election to make the choice. Obama mocked this idea:

"There's no unwritten law that says that [Supreme Court confirmations] can only be done on off years -- that's not in the constitutional text. I'm amused when I hear people who claim to be strict interpreters of the Constitution suddenly reading into it a whole series of provisions that are not there."

Obama is battling a straw man, as is his wont. Republican senators are not contending that the Constitution bars them from confirming a nominee this year. They're saying it allows them to hold off until next year.

Which it does. The framers considered requiring the Senate to take action to keep a nominee from being confirmed. They rejected that idea, writing a Constitution that made confirmation depend on affirmative steps by the Senate. The practical difference between these arrangements is that under our Constitution, the Senate can kill a nomination passively, by doing nothing.

When Obama was himself a senator, he tried to block an up-or-down vote on the nomination of Samuel Alito to the Supreme Court -- going against what he now says the Constitution obliges. When this history came up at the press conference, the closest Obama came to a response was that Alito made it to the court anyway. A spokesman later said the president regrets the decision to take part in the filibuster. But if Obama wasn't shirking his constitutional duty back then -- and he wasn't -- neither are Senate Republicans now.

The fact that the Constitution allows the Senate to ignore a Supreme Court nomination does not mean it is right to do so. Chris Cillizza, in The Washington Post, suggested that Republicans are making a "big mistake" even from the standpoint of their own political interests. Instead of saying no from the beginning, he argued, they should hold hearings and then filibuster Obama's nominee. (They could also hold hearings and then vote that nominee down.) He speculated that Republicans would look more reasonable this way.

How to defeat a nomination, though, is just a tactical question. The more fundamental issue is whether it's reasonable -- actually reasonable, not just reasonable-looking -- to deny Obama the chance to fill this vacancy this year.

I think the answer is yes. In part that's because, for all the convenient invocations of the Founders we have heard in this debate already, this isn't the Founders' Supreme Court. It's a court that plays a much larger policy-making role than it did for much of our history. (Recall that the court in its first 70 years struck down precisely two federal laws as unconstitutional.)

Modern liberalism is aggressive in its use of judicial power to impose its policies, whether or not those preferences accord with the text or original understanding of the Constitution. The best example of this tendency is Roe v. Wade, in which the court struck down abortion laws across the U.S. on the pretense that the Constitution somehow forbids them. Even experts on constitutional law who support legal abortion have said that Roe was a poorly reasoned decision ("it is notconstitutional law and gives almost no sense of an obligation to try to be"). This anti-constitutional decision has become sacred for Democrats. Obama claims he has no litmus test, but has said that his judicial nominees will support Roe.

Judges who are willing to put their policy views over the Constitution in that manner will find it easy to do it in other cases, too: to hold that states cannot give students scholarships for private and parochial schools, or that they cannot maintain the death penalty.

When a court invalidates a law because it clearly violates the Constitution, it can justify its apparently undemocratic action on the ground that the Constitution counts as the will of the people in a more durable sense than a statute does. When it invalidates a law without that justification, its rulings lack democratic legitimacy.

Justice Scalia was one of the court's most stalwart opponents of that kind of end run.

Replacing him with another justice who will vote in lockstep with the court's liberal wing -- which tends to vote as a bloc much more than the conservatives do -- would go far to advance the project of replacing the Constitution with progressive dogma. The Constitution gives Republicans the ability to call at least a temporary halt to this project, by keeping Obama from making another Supreme Court appointment. They're right to take it.

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Ramesh Ponnuru has covered national politics and public policy for 18 years. He is an author and Bloomberg View columnist.

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