As an amateur Supreme Court watcher and a constitutional originalist, the death of Justice Scalia has me thinking a lot this week about the state of American politics. I read each of the court’s opinions, and frequently SCOTUSBlog also, and have come to know a bit about each of the justices over the past few years. While a controversial one, I’ve found Scalia to operate within a pretty predictable and consistent interpretive perspective over the years. Like any enthusiastic, potentially delusional, amateur, this leads me to believe that I understand how he would have felt about the political Sturm und Drang around choosing his successor.

I think Scalia would have wanted Obama to nominate his replacement and for the Senate to vet, debate, and vote on that candidate.

“A Constitution is not meant to facilitate change. It is meant to impede change, to make it difficult to change.”

I regularly laugh at the trendy political pseudo-commentary lamenting how Washington gets nothing done because of a refusal by so many to compromise. That is, of course, precisely what the founders hoped for when designing a three-branched form of constitutional, representative democracy. Government isn’t supposed to be able to do very much; and nothing at all apart from a mandate from the people via their representatives. The act of electing those representatives is when the people’s voices are to be heard. All other government business is to be conducted through those representatives, acting according to their constitutional responsibilities and staying within the predefined limits of their power.

Here is the appointment’s clause of the US Constitution:

[The President] shall nominate, and, by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The idea behind this clause is the limitation of congress’ power from filling executive and judicial positions with only their supporters. This power is given to the president, and his only obligation is to persuade enough senators of the reasonableness of his choice to secure a majority vote acknowledging congressional advice and consent. Selecting justices to the Supreme Court is the responsibility and authority of the President of the United States, not the congress. An individual senator has the right, and obligation, to vote for our against that candidate as a reflection of their ability to consent to the choice. This is how our government is intended to work. This is the plain reading, interpreted in its original context, of the US Constitution. This is what, I believe, Scalia would have wanted.

Of course, it’s unlikely that this is what will happen because of the Republican commitment to filibustering any nominee the president would offer. The filibuster is a complex process, but the philosophy behind it is rather simple: prevent the president from overriding the will of congress when their is overwhelming congressional support for an issue. As I’ve studied the issue, my conclusion is that the super-majority support required for certain types of actions (and the filibuster that consequently allows) is intended for laws and not for nominees.

Requiring a super-majority to override a presidential veto prevents the president from overriding the will of a super-majority of congress (presumably bi-partisan), remembering that this congressional will is also subject to constitutional review by the judiciary.  One branch of the government has the right, and obligation, to create the laws necessary for the good of the country and its people. If a president attempts to prevent them from doing so, they have a reasonable, yet meaningful, means of recourse to override that interference. The democratically-elected president also has the right, and obligation, to make it more difficult for congress to pass laws that the people who voted for him do not want to have. As a side-effect of these checks and balances, or perhaps even more purposefully, the filibuster exists. This allows a minority, believing their rights and responsibilities infringed by the majority, to resist that oppression. It also provides a reasonable, yet meaningful, means of recourse for the majority to override that resistance.  I support the filibuster as a procedural concept for maintaining proper checks and balances of rights and powers within our government.

I also believe that the filibuster should not have anything to do with the process of advising and consenting to presidential appointments. The president has the authority to nominate the candidates. The judiciary has the responsibility to referee any disputes as to whether those candidates satisfy the legal requirements for their position. Each senator has the responsibility to vote in the affirmative or negative to the matter of their personal advice and consent with the selection. A majority of the senate having voted in the affirmative, the candidate is confirmed.

The cases where super-majorities are required and/or where filibusters are appropriate are limited to those situations where either one branch of congress is preventing another from exercising its power or when the majority is using its power to silence the minority.  Neither of those cases apply here. The president does have the authority the appoint. The minority (those who would vote no) do have the authority to voice their disapproval. The system works.

From my religious, political, and economic perspective, allowing President Obama to have a third appointment to the Supreme Court will have dire consequences. And yet, I do not believe that significant consequences justify violating the very constitutional foundations upon which our country were built. It is not for congress to allow or disallow him to make his choice – that choice is allowed by the US Constitution and was sealed when the people elected the president to a second term in office.

There’s a common half-truth joke in sports that is brought up when one team is perceived to either be running up the score or celebrating excessively: “If you don’t like what they’re doing when they score, stop them from scoring.” If the republicans want to prevent democratic presidents from nominating Supreme Court justices, I believe they have two constitutionally-supported options: 1) stop losing presidential elections; 2) win enough senate seats that you can vote down the president’s nominees in regular order. If you don’t like what they do with the responsibility they have, stop them from getting the responsibility in the first place.

As a man who loved the constitution, straight-forward interpretations of texts, wit, and even irony – I think Scalia would have wanted President Obama to do his duty.

“If you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.” – Justice Scalia