Justice Antonin Scalia, a fervent constitutional protagonist of originalism or textualism, would have said that the Constitution makes clear that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … judges to the Supreme Court.” For the Senate to blatantly refuse to have the hearing is unconscionable.
The president’s term, voted by the people, is for four years, not three years plus a lame-duck, inactive, impotent year. Contrary to some candidates’ erroneous recollections, several appointments have occurred in the final year of a president’s term.
Reagan appointed Justice Anthony Kennedy in his final year; Pitney was appointed by Taft in 1912; Brandeis and Clarke in 1916 by Wilson. Chronological sequencing is not relevant; it’s about our Constitution. The longest time that has lapsed between a candidate’s nomination and a vote was 125 days. Obama has more than 300 days left. Plenty of time.
The far right regularly demonizes Obama for so-called violations of his constitutional obligations, which they proclaim to hold dear. Except, however, when it is convenient for them to say he should not perform his sworn duty, as is the case here — an obvious partisan political obstruction and inconsistency. To freeze the polarized Supreme Court with eight justices for over a year denies “we the people” due legal process in pending cases.
Scalia’s view was that our Constitution was not a living document but “dead” or enduring, it was not meant to facilitate change, but to impede it. Based on his view, one has to ask how the Second Amendment morphed into individual citizens’ right to buy multiple arms of almost any type without regulation.
Clearly there is a requirement for our Constitution to be a living document — adapting and evolving to accommodate essential modern contextual needs — enabling and expanding concepts of voter rights, gay rights, racial inclusion, privacy/dignity, abortion, immigration, voter access, etc.
Where would our country be today if we rigidly stuck to fossilized doctrines, well reasoned at the time, but outmoded and superseded by the key survival need to adapt and adopt?
David J. Waldron