What Would Scalia Do?

The late justice would want Merrick Garland to have a fair hearing before the Senate—because that’s the original meaning of the Constitution.

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?

Scalia would start with the text of Article II, which provides that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the Supreme Court.” Note that the president “shall” nominate and appoint. He has an affirmative duty. By implication, the Senate has an affirmative duty to provide the advice and consent necessary to effectuate the command to nominate and appoint. Their role is not discretionary. Like the president’s, it is obligatory. Senators may withhold consent, as the Republican letter correctly notes, but there is no textual or principled basis for denying hearings altogether.

The Senate, however, has informed Americans that it seeks to protect the people’s ability to choose “the direction the Court will take over the next generation.” But the people do not choose justices for the Supreme Court. As Scalia would make clear, the Constitution already reflects the will of the people by granting the duly elected president the power to nominate justices and the Senate the power to advise. President Obama won the most recent election. There is no exception to the appointment power that disables it for the final 11 months of a president’s tenure.

Underscoring their call for recalcitrance, of course, is the reality that Republican senators must satisfy their partisan base—by inhibiting the Democratic president’s ability to make an appointment to the Supreme Court during the final year of his presidency. The seat should remain vacant, Republicans say, until the results of the next partisan election are in. The fact that press reports indicate some willingness on the parts of a few of those same Republicans to hold hearings and confirm Garland during the lame-duck period—should the Republican presidential candidate lose in November—only underscores the party politics behind the Senate’s refusal to conduct hearings. Such partisanship is anathema to the Constitution’s original meaning and design.

James Madison, a key architect of the Constitution, wrote in Federalist 10 that the Constitution’s structural design was intended to counteract the pernicious effects (the “mortal disease”) of party factions. Factions, he wrote, are “citizens … who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” To that end, the original design for selecting the president and vice president assigned the offices according to who received the two highest numbers of electoral votes no matter their party allegiance. The assumption was that only persons possessing great civic virtue would be chosen to fulfill those offices. Selecting a president this way did not account for the possibility of party-line tickets for president and vice president, a flaw that led to an electoral debacle in the 1800 election. The Twelfth Amendment was created to address this problem and to acknowledge the development of partisan politics.

This original design of the Constitution is relevant to understanding the original meaning—as Scalia would—of the Senate’s obligations to give advice and consent to the appointment of Supreme Court justices. Just as Madison did not contemplate that presidential elections would be dominated by partisan politics, the framers would not have contemplated that the Senate would refuse its advice-and-consent obligation for purely partisan purposes. And, unlike the method of selecting a president, the formula for choosing justices remains unamended, reflecting an original understanding both that the Senate has an obligation to advise and consent and that it must do so on behalf of the American people, not a partisan faction.

Even if Republicans do allow Garland or another nominee a hearing, some have suggested that the Senate’s filibuster rules could provide an insurmountable partisan hurdle by requiring Supreme Court nominees to be approved by a supermajority. Original understandings might also address this specious claim. In the same section of Article II that obligates the president and Senate to nominate and appoint Supreme Court justices, it also provides that 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.” Treaties, then, specifically require a supermajority of the Senate. Judicial appointments notably do not. An original understanding of the Senate’s power to establish its own rules for conducting its business does not contemplate a surreptitious attempt to impose a supermajority requirement for Supreme Court appointments, especially for potential partisan advantage.

Scalia was not a consistent originalist, perhaps less so as his tenure approached its final years. But holding his seat open for a year under the hopes of gaining present and future partisan advantage, as Senate Republicans vow to do, is contrary to Scalia’s commitment to original constitutional meanings and contrary to plausible accounts of constitutional principle and function. Whatever Republican senators might think they owe to the spirit of Scalia’s method of understanding the Constitution, they owe it to the American people to exercise civic virtue, not partisan constitutional defiance.