While The View From Above generally posts on issues and topics concerning international law, I believe it prudent to address President Trump’s Supreme Court nominee—which will surely have a future impact on international law and the role the United States plays in it. This post briefly analyzes the following in response to the passing of Justice Antonin Scalia: Presidential Appointment Powers; then-President Obama’s nominee, Chief Judge Merrick Garland; and President Trump’s nominee, Judge Neil Gorsuch.
An Originalist Perspective on the Presidential Appointment Powers
For better or worse, in the context of constitutional interpretation, Republicans are often affiliated with the theory of Originalism. Justice Scalia, perhaps the most famous Originalist to date, defined originalism in this way:
“The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.”
Article II, Section II, Clause II of the United States Constitution, known as the Appointments Clause, empowers the President of the United States to nominate certain public officals with the “advice and consent” of the Senate. This clause of the Constitution gives the President the power to nominate judges, but it also gives the Senate the affirmative power to provide “advice and consent” and places no limits on how the Senate discharges this power. Nowhere in the Constitution does it state that the Senate must hold a hearing for, let alone consider, a Supreme Court nominee. Keeping this perspective in mind, the Senate may withhold its consent by voting down a nominee, but it may also withhold its consent by refusing to act, or otherwise failing to confirm a nominee. As such, when the Constitution is interpreted from an Originalist perspective, the argument that the Senate has a “Constitutional Duty” to consider a Supreme Court nominee is likely erroneous.
The unusual circumstances resulting from the untimely death of Justice Scalia (where the President nominates an individual to the Supreme Court in an election year and where the Senate is controlled by a party other than that of the President) has occurred twice before in our nation’s history. In each instance, regardless of which party controlled the White House or the Senate, the Senate has held a hearing for the Supreme Court nominee. In 1895, Democratic President Grover Cleveland nominated Rufus Wheeler Peckham to the bench before a Republican-controlled Senate. The Senate held a hearing for Peckham and confirmed his nomination. More recently, in February 1988, a Democratic-controlled Senate confirmed Republican President Ronald Reagan’s nominee for the Supreme Court, Anthony Kennedy. In fact, every Supreme Court nominee since 1875 has received a hearing before the Senate— well, every nominee except one.
As such, I believe that the Senate should promptly consider and vote on every presidential judicial nominee, not necessarily because the Senate has a constitutional obligation to do so, but, rather, because a historical basis exists upon which this claim may rest.
(Then-) President Obama’s Nominee: Chief Judge Merrick Garland
On March 16, 2016, then-President Barrack Obama nominated Chief Judge Merrick Garland, of the United States Court of Appeals for the District of Columbia Circuit, for Justice Scalia’s vacated Supreme Court seat. In an unprecedented act of childish discourtesy, the Republican-controlled Senate refused to hold a hearing for, or even consider, President Obama’s nomination of Chief Judge Garland.
As explained above, the Senate might not be obligated to hold a hearing for a Supreme Court nominee, let alone explain its reasons for not doing so. Someone should have told this to Republican Majority Leader Mitch McConnell. Senator McConnell stated that the reason for the Senate not holding a hearing was because the American people should have a voice in the filling of Justice Scalia’s vacancy. This argument from silence should not be ignored, and is particularly unpersuasive given the general affiliation between Republicans and Originalism, as outlined above.
President Trump’s Nominee: Judge Neil Gorsuch
On January 31, 2017, President Trump nominated federal appeals court Judge Neil Gorsuch to fill the Supreme Court seat that has sat vacant since the passing of Justice Scalia. Judge Gorsuch is certainly a qualified nominee. He earned his Juris Doctor degree from Harvard Law School (where he was a classmate of former-President Obama) and his Doctor of Philosophy degree in Legal Philosophy from University College, Oxford. Additionally, Judge Gorsuch was a law clerk for Justice Kennedy.
While it is likely that the Senate will hold a hearing for Judge Gorsuch, it will be interesting to see whether Democrats attempt to block his confirmation because of the events (or lack thereof) surrounding then-President Obama’s nomination of Chief Judge Garland. While some Democrats want to block Judge Gorsuch’s confirmation because of his willingness to endlessly extend religious freedoms and his desire to reduce the power of regulatory agencies, many Democrats want to block the confirmation of Judge Gorsuch based on principle. However, I question whether that would be a wise course of action. Given President Trump’s unpredictability, Democrats might want to allow the confirmation of Judge Gorsuch. No one knows who President Trump’s next nominee might be.
While Judge Gorsuch has been very conservative in his past rulings, he does so by means of a consistent interpretation of the Constitution, (generally) without including his own personal beliefs—the polar opposite of Justice Alito. As such, it will be interesting to see whether, if given the opportunity, Judge Gorsuch aligns more with Justices Alito and Thomas, or Chief Justice Roberts. Additionally, while the Court is currently in a 4-4 (Republican-Democrat or Conservative-Liberal) split, Judge Gorsuch is set to take the place of Justice Scalia, a reliable conservative vote of the Court. With the recent talk of Justice Kennedy’s (the Court’s recent swing vote) potential stepping-down and Justice Ginsburg’s (a reliable liberal vote) advanced age, Democrats might want to hold their revenge for another day.
- “He [The President] shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he 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.” U.S. Const. art. II, § 2, cl. 2 (emphasis added).↑
- Anthony Kennedy was nominated by then-President Reagan in November 1987. Banen, Steve (February 15, 2016). “Justice Kennedy’s confirmation debunks key GOP talking point“. MSNBC. Retrieved February 3, 2017.↑
- Judge Gorsuch has been a federal appellate judge on the United States Court of Appeals for the Tenth Circuit since August 2006.↑
- It will be interesting to see whether, because of their past relationship, Judge Gorsuch would push Justice Kennedy towards voting more conservatively than he has in the recent years.↑
- See Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013).↑
- See Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016).↑