As noted in the correspondence below, I believe that the Senate should consider only two factors in considering a judicial nominee: Is s/he highly qualified? And if so: Is there an objective reason why s/he should not be confirmed (criminal record or indictment, substantiated drug abuse problem, etc.)? The candidate’s substantive views should not play a role. The Constitution gives the President the power to nominate and appoint; the Senate should discharge its duty … consenting to qualified nominees, withholding consent from those that are not. Below are edited versions of letters I sent to Sen. Charles Grassley in March, 2016 and Sen. Tammy Baldwin in February, 2017. Alas, neither agreed with me. In between, there is edited text of an email I sent to a friend in July, 2016. Not being any sort of Constitutional lawyer, I have no idea whether the noise I spouted in that email would have had any legal merit; in any event, Mr. Obama didn’t try it.
In re: Senators’ Consideration of Judge Garland for Supreme Court
Dear Senator Grassley:
I am writing to express my extreme disappointment at the current refusal by you and your Republican colleagues to carefully consider the nomination of Judge Garland – or indeed, any nominee put forth by President Obama – to the Supreme Court. This letter comes from me, not as part of any initiative by any lobbying group.
Both parties talk about “doing the people’s business,” and the Republican Party particularly stresses the need for judges that will abide by the “plain meaning of the Constitution.” I have actually gone back and read Article II, Section 2 of the Constitution. As you well know, it grants the President the power to “…nominate, and by and with the advice and consent of the Senate … appoint … judges of the Supreme Court [Emphasis Added] ….”
I see nowhere in the section any language limiting the President’s powers of nomination and appointment to the first three years of his/her term. Although a time frame for the Senate’s consideration isn’t specified, I doubt that even a strict constructionist would question the drafters’ intent that the Senate consider the qualifications of a candidate for a position at the top of the third branch of the government promptly and impartially. Republican comments I’m hearing about “letting the people speak” are an unfortunate avoidance of duty; the people did speak — in 2012. I’m confident that you would concede (albeit ruefully) that the Republican Party made the President’s power to appoint Supreme Court nominees an issue in the last presidential campaign.
Realizing how naïve this sounds, I truly believe that the Senate should consider only two factors in considering a judicial nominee: Is s/he highly qualified? And if so: Is there an objective reason why s/he should not be confirmed (criminal record or indictment, substantiated drug abuse problem, etc.)? The candidate’s substantive views should not play a role. We elect a President; the Constitution gives him/her the power to nominate and appoint; the Senate should discharge its duty … consenting to qualified nominees, withholding consent from those that are not.
Based upon the position currently being taken by you and your Republican colleagues, any objective observer will conclude that the Republicans like the Constitution when they agree with it … and are just as willing as they claim Democrats are to discount the Constitution when they don’t agree with it. I have no idea whether Judge Garland is qualified; that is for the Senate to determine. However, if he is well qualified and has no other objective impediments, he should be confirmed. [Very truly yours]
There’s an opinion piece in The Wall Street Journal this morning by the President of the United States, decrying the Senate’s unwillingness to hold a hearing on Judge Garland.
Am wondering whether the President could sue the Senate on the theory that the Senate has violated the President’s constitutional right under Article II to appoint Supreme Court Justices by its failure to provide any advice or consent (i.e., no hearing) within a reasonable time after the President made his nomination. No matter what the disposition at the lower court levels, it would obviously (and wildly interestingly) reach the 4-4 Court … and it seems [at least to me 😉 ] that there would be some chance that either Roberts or Kennedy (or both) would find that the Senate does have a duty to hold hearings and vote on a President’s nominee within a reasonable time …
Doesn’t mean Garland would be confirmed — he almost certainly wouldn’t be; and at this late date, by the time the claim wound its way through the court levels, the issue would be moot … but am disappointed that Obama didn’t bring the claim …
In re: Standard for Assessment of Judge Gorsuch
Dear Senator Baldwin:
Although I have limited hope that you will heed this request, I am compelled to make it: please review the qualifications of Judge Gorsuch fairly and impartially, and base your vote to confirm or reject upon objective criteria rather than upon the nominee’s substantive views.
I consider the Senate Republicans’ refusal to hold hearings on Judge Garland’s nomination (nor – unless unexpected issues had surfaced – to have confirmed him) a dereliction of their duty. Furthermore, I am pretty darn confident that I would have been more comfortable with Judge Garland’s contributions to the Supreme Court than I will be with Judge Gorsuch’s.
That said, I now urge you to adopt this approach toward Judge Gorsuch’s and any future nominations to the Supreme Court that come before you: Is s/he highly qualified? And if so: Is there an objective reason why s/he should not be confirmed (criminal record or indictment, substantiated drug abuse problem, etc.)? As naïve as I realize this sounds, the nominee’s substantive views should not play a role. We elect a President; the Constitution gives him/her the power to nominate and appoint; the Senate should discharge its duty … consenting to qualified nominees, withholding consent from those that are not.
[Even so, if I was on the Senate Judiciary Committee, I would not be able to resist asking Judge Gorsuch these questions during his hearing: Based upon his own knowledge of Judge Garland’s jurisprudence, does he consider Judge Garland qualified to sit on the Supreme Court? And: Although Judge Gorsuch is a literalist, are there instances that he would apply a “reasonable time” standard to a constitutional duty even if none is expressed in the document?]
Although many are disheartened by many of the actions President Trump has taken since assuming the presidency, under the Electoral College system we use, the people have spoken.
As President Obama said toward the end of his term: elections matter, and if a voter doesn’t like a result, s/he should “grab a clipboard” and start organizing and/or running for office. Paraphrasing Ms. Obama: Government needs to go high. Process and performance of duty matter. In the last round, he won; she lost. Elected officials shouldn’t indulge in the luxury of letting their instincts or emotions govern the performance of their responsibilities. [Very truly yours]