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April 28th, 2017

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A modest suggestion for choosing the judge

Wesley Pruden

By Wesley Pruden

Published Feb. 19, 2016

A modest suggestion for choosing the judge

Everybody is putting his 2 cents in about the vacancy on the U.S. Supreme Court and how to fill it, and President Obama hasn't even sent up the name of the man, woman or trans-sexual whom he thinks would adorn the highest bench in the land. Who knew we had so many Philadelphia lawyers amongst us?

Joseph R. Biden, the vice president, who often tells the world what the president thinks even before the president knows that's what he thinks (that's how he changed the president's mind on same-sex marriage), explained how the vacancy will be filled.

"The Senate gets to have a say," he said, in a fit of generosity, "so in order to get this done, the president is not going to be able to go out — nor would it be his instinct, anyway — to pick the most liberal jurist in the nation and put them [sic] on the court. There are plenty of judges who are on high courts already who have had unanimous support of the Republicans."

Then he added the ritual demand that the Republicans had better get with the program, or else. "To leave the seat vacant at this critical moment in American history is a little bit like saying 'God forbid something happen to the president and the vice president, we're not going to fill the presidency for another year and a half.' "

It's not that way at all, as any Blackstone could tell you, and if good ol' Joe imagines that putting the most liberal judge in the nation on the court is not Barack Obama's "instinct," the veep hasn't learned much over the past seven years. Of course it's the "instinct" of the man who is trying to replace Congress with executive orders to want to pack the Supreme Court with reliable liberals who will rewrite the Constitution to make it fit whatever schemes to liberals and "progressives" devise. Elena Kagan and Sonia Sotomayor were put on the court for just that purpose, and are working out to Mr. Obama's satisfaction.

Mr. Obama says he will nominate someone who will satisfy "any fair-minded person," and you can bet that he gets to define "fair-minded." The Democrats have picked up good ol' Joe's yardstick for measuring nominees who would be acceptable to Republicans and Democrats alike — "judges who are on high courts already who have had unanimous support of the Republicans." But good ol' Joe knows that confirming an appellate judge and a Supreme Court justice are not at all the same thing. The appeals courts, august or not, are farm clubs, after all, and making it to the Texas League is not the same as making it to the National League.

Does anyone imagine that Antonin Scalia, who was confirmed by a vote of 98 to nothing, would get a single Democratic vote in the Senate today? The president won't even go to his funeral.

The Constitution leaves it up to the senators to make up nearly all the rules governing the selection of a replacement for a dead judge. The Constitution (Article III, Section 2) says only that the "judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." Indeed, Congress doesn't even have to create federal appellate courts at all, and could rely on state courts enabled with the right of appeal to the Supreme Court. (Not a bad idea, either.)

"From the fact that the lower courts are optional," writes Noah Feldman of Bloomberg News, "you can deduce that the Supreme Court isn't [optional]. But the size of that [Supreme Court] is left undefined. In theory, I think, it could consist of a single judge. The interpretation of the Constitution would rest in his hands. You could even call him Anthony Kennedy."

Barack Obama isn't the first president who doesn't have enough liberal judges to suit his purposes. Franklin D. Roosevelt tried to increase the Supreme Court in 1937 from 9 to 15 judges, a convenience to protect his New Deal. But if Congress wanted to, it could increase it to 25. The Constitution doesn't say it nay. He wouldn't even have to nominate a lawyer. Al Sharpton would do.

If the president really means it when he says he wants to nominate a successor to Justice Scalia who will satisfy everyone, he should put up two names, one selected by the Republican caucus and one by the Democratic caucus. You could call it a run-off. The Senate chooses, and he would formally nominate the winner. How could anyone object to a democratic choice like that?

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JWR contributor Wesley Pruden is editor emeritus of The Washington Times.

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