Americans, like all humans, are trapped in history; thus we can’t know now whether the American republic is on its deathbed or simply spiking one of its periodic fevers. The patient has recovered from near-fatal illness before; but it has to be said that lately—with the rise of a potential dictator in the form of Donald Trump and the effective collapse of a functioning national legislature—its breathing has developed an ominous rattle.
In such moments, the first rule for would-be physicians is well known: Primum non nocere—“First, do no harm.” But in recent weeks, a handful of progressives have ignored that principle. A perfectly dreadful idea has been circulating: President Obama should, after waiting a few more weeks for the Senate to act on his Supreme Court nomination, simply proclaim Judge Merrick Garland “confirmed” and send him over the One First St. NE to take Antonin Scalia’s vacant seat.
A worse idea could hardly be imagined. But the fact that serious people are discussing it demonstrates how effectively conservative legislators have undermined the very idea of civil dialogue. The congressional majorities have begun to act as if the United States doesn’t have an elected president. They will not debate an authorization for use of force against ISIS; they will not permit Obama’s budget director to testify about the budget; they will not hold hearings on his Supreme Court nomination. The message has been that the administration is not legitimate and no real legislating will be done on any subject.
The progressive argument for “confirmation by proclamation” begins with the Constitution’s provision that the president “shall nominate, and by and with the advice and consent of the senate . . . shall appoint . . . judges of the Supreme Court.” It doesn’t say, they note, that “advice and consent” requires a formal vote. What if the president were allow the Senate a reasonable time to act on the Garland nomination? If it doesn’t, Obama could announce that, in essence, silence means consent, and his nominee is appointed.
This argument does not simply torture the Constitution’s text and history, it waterboards it. The words “advice and consent” in Article I of the Constitution may seem vague, but in context, they aren’t. Senate confirmation is required not only for judges, but for “Ambassadors, other public Ministers and Consuls … and all other Officers of the United States, whose Appointments are not herein otherwise provided for.” Even a Senate working in good faith could not necessarily confirm every presidential nominee within a fixed time period, and the text sets no deadline for these appointments. Elsewhere, the Framers did provide deadlines: For example, neither house of Congress may “without the Consent of the other, adjourn for more than three days.” A bill sent to the president for signature will become law unless he signs or vetoes it “within ten days (Sundays excepted).” Presidents also have the “power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” The Framers understood deadlines, and they neither set one, nor implicitly granted the president power to set one, for confirmation.
Beyond that, as Peter Shane of Ohio State University recently pointed out in an interview, Article II of the Constitution makes clear that “advice and consent” is a formal vote, not just a moment of silence. The president has “power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur.” In 225 years, to the best of my knowledge, no one has discerned this power vested in the president. There’s a reason for that: It’s not there.
On the other side, some conservatives have suggested that the Senate has no “duty” to consider a presidential nomination. Glenn Kessler, who runs the “Fact Checker” blog at The Washington Post, went so far as to give “three Pinocchios” to the idea of a senatorial duty, deeming it “mostly false.” But this apparently means it’s “maybe wrong or maybe not.” As Kessler wrote, “It’s matter of opinion whether a refusal to consider a nominee is a dereliction of constitutional duty or walking away from a constitutional responsibility.” A matter of opinion is not, by definition, a matter of fact.
The Supreme Court, like the rule of law itself, is actually a fragile thing.
Strictly according to the text, the Senate has almost no “duties” at all: no duty to confirm any officials; no duty to pass an annual budget; no “duty” to count the electoral vote or honor its result; no duty to hold an actual trial of any impeached official; no “duty” to do anything except possibly to “assemble at least once in every year” for a few minutes, then head out for the fishing hole while the Republic burns. The word “duty” appears in the Constitution only as a term for fees on imports. But the only reasonable interpretation of the oath of office is that it brings with it the responsibility to govern; and therein duty lies.
The Senate’s inaction sends a message to the country: The fate of the Supreme Court is an annex of the transient Senate majority. It is the property of a party and exists to do that party’s bidding. That idea undermines the institution. Despite its somewhat threadbare majesty, the Supreme Court, like the rule of law itself, is actually a fragile thing.
The only way to force action on the nomination is the one at the heart of all Constitutional disputes. If the American people care about a government that works, and a Court that can function, they will pressure their senators today and retaliate against the recalcitrant in the fall. That’s what “government by the people” means. Only the people can break the country’s current fever.
Shoving poor Merrick Garland up the Supreme Court steps would compromise the legitimacy of every future decision. Once law is wounded in the house of its protectors, the damage may be irreversible.