What Originalists Should Say About a Scalia Replacement

[applegrove]

What Originalists Should Say About a Scalia Replacement

By Richard Schragger at Slate

http://www.slate.com/articles/news_and_politics/jurisprudence/2016/02/ted_cruz_is_an_originalist_hypocrite_over_antonin_scalia.html

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Justice Antonin Scalia’s death had barely been announced before the fight over his potential successor began to reach a fever pitch. Republicans are saying that there shouldn’t be another appointment until the next president is in office. Democrats, meanwhile, are arguing that the Republican-controlled Senate has a constitutional responsibility to consider Obama’s appointment. On Monday, Democratic front-runner Hillary Clinton made the strongest such statement, accusing these Republicans of “ignoring the Constitution” and turning their backs on Scalia’s legacy of originalism, the theory of constitutional interpretation that requires adherence to the original meaning of the constitutional text. So what does fidelity to the Constitution require? And does originalism have anything to say about it?


It’s actually a tricky question. There is no reason for an originalist to oppose an Obama nomination on constitutional grounds. But there’s also no constitutional obligation for the Senate to approve a presidential pick.

First off, there is nothing in the Constitution that provides a time limit for presidential nominations to the Supreme Court. The founders could have decided that presidents should not nominate late in their term or at all when an election was imminent. But they could not have contemplated the structure of the modern presidential election, with its endless campaigning or its presidential term limits. So, too, the Constitution has nothing at all to say about lame ducks or even what specific role—beyond an up or down vote—the Senate should have in approving nominees to the high court.


And so one has to ask: On what theory of constitutional interpretation do Sen. Ted Cruz and other avowed originalists maintain that the president should not put forward a nomination—and that the Senate should not consider it—in an election year? Their argument, as far as I can tell, is that it is anti-democratic for a sitting president in his final year to make an appointment to the court when an election is right around the corner. Why, though? Obama was duly elected three years ago; presumably the citizenry anticipated he would make nominations throughout his term in office. And there is nothing anti-democratic about the Senate taking up the nomination or about senators who are also up for re-election voting on that nomination.



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