President Obama has selected his nominee: D.C. Circuit Judge Merrick Garland. The Republican-controlled Senate has vowed to provide no hearings, no advice, and certainly no consent. This constitutional defiance has been consistent since the hours following the news of Justice Antonin Scalia’s passing. Senate Majority Leader Mitch McConnell as well as Senate Judiciary Committee Chairman Chuck Grassley have made their message loud and clear: No confirmation hearings will happen no matter the exemplary qualifications Garland possesses. Senator Ted Cruz has tethered such resistance to the legacy of Scalia, tweeting: “We owe it to him, & the Nation, for the Senate to ensure that the next President names his replacement.” Along with other Republican members of the Senate Judiciary committee, Cruz argues in a letter to McConnell that their intent to subvert ordinary constitutional process is based on “constitutional principle” and “born of necessity to protect the will of the American people.” They are wrong on both counts, and Scalia, if he were true to his own reading of the Constitution, would agree.
Scalia’s distinctive method of interpretation requires difficult constitutional questions to be resolved by examining the meaning the words of the Constitution would have had for the American public when it was enacted. The Constitution’s aspirational phrasing and general terms are not to be given contemporary gloss. They are to be given their original meanings. Fidelity to original meaning, according to Scalia, is a way to constrain judges and sharpen their constitutional focus. So the question Scalia would ask is: What would the original meaning of Article II’s nomination and appointment powers have been?