Convenience of Not Acting: Why Not Appointing is A Miscarriage of Justice

"I may not like what you do, but I know you have a job to do." - Unknown

Convenience of Not Acting

 Why Not Appointing is A Miscarriage of Justice

Carolyn Kaster | AP

Antonin Scalia passed away this past weekend at the age of 79 in Texas after a hunting trip. As he passed away and within mere moments of his passing, the most important part of our three-branch governmental system (which was given power in 1803 by the Marbury v. Madison case that gave rise to the right of judicial review) became incomplete. The absence of an intellectual mind who is controversial and whom many disagreed with is gone. While some are egregiously and heinously joyous over his death (and I use the words heinous and egregious purposefully because it shows that people have no honor for the dead. I did not agree with Scalia at all, but I do not rejoice in his death neither), others are tearful and are left with the taste that the scheme of jurisprudence within the United States is set to change for the first time in nearly a generation. 

 

As quickly as Scalia was shipped to a funeral home in El Paso, was in the same breath that people asked "Who is Obama going to appoint?" ( As a humanist, I believe that just demonstrates that people of the world believe that other humans are disposable and once they die, they are just merely to be replaced by another who can do the same job without much consideration or care... rather than wait until after the funeral, they look for a replacement with immediacy upon the last breath of someone.) As quickly as that was said, partisanship came up and reared it's ugly head with many a Republican stating that the appointment should be delayed for a period extending over 300 days until after the next President is inaugurated. Others have said to let the President immediate appoint. I am here to state that I am in support of the latter, as Scalia would have liked us to abide the Constitution and not expand or detract from it's power. 

One of the more interesting arguments that people make in support of waiting is that the confirmation of a Supreme Court justice during an election year would spell an undue burden on the Presidency. However the United States Presidency is no stranger to judicial incumbency caused by death. There have been at least 10 appointments made during an election year spanning from the November before the election all the way until the date of the inauguration ( 1 , 2 , 3 ). Each time, the justice was appointed amidst great political upheaval and to the spite of many. To me, it sounds rather absurd to prevent the President from acting in accordance to a power that is within the confines of the Constitution merely because of a partisan concern. Any person who is in Congress has a duty to act within the confines of the Constitution (and I will get to this later about how filibustering an appointment is a miscarriage of justice and tantamount to treason and sabotage... yes, I am going there). 

Another point that the opponents of election year appointment is that it does not allow the public to have a meaningful choice and stymies the Democratic process... That is not true. Elisabeth Warren said it the best "Senate Republicans took an oath just like Senate Democrats did. Abandoning the duties they swore to uphold would threaten both the Constitution and our democracy itself. It would also prove that all the Republican talk about loving the Constitution is just that — empty talk. " As a result, Warren makes a statement that any person who is a formalist, textualist, and a strict constructionist would enjoy because " Article II Section 2 of the Constitution says the President of the United States nominates justices to the Supreme Court, with the advice and consent of the Senate. I can't find a clause that says "...except when there's a year left in the term of a Democratic President." ( 4 ).  Once again going back to my point about breach, there is a breach of the duty and it seems to be flagrant disregard for the Constitution which the highest law of the land.

Any Senator who is partisan and says "Any nominee for the court will be voted against" is operating in violation of their Congressional duty and is tantamount to Congressional treason. It makes sense to say that because it is operating against the interest of the Justice system and it cripples it from operating the way that it should. By having cases that have already been granted certiorari last month sit on the docket until the next year without proper consideration or call for unnecessary recusals, it leaves the message that "Rather than try to comply with the Constitution, we would rather operate with a handicapped Supreme court that is one or two justices short. It sets a bad precedent and allows an entire party who is stomping their feet and crying about not getting it's way to get what it wants. 

This is unjust also because now, it will lead to a slippery slope. There is a good chance that this will limit federal appointments because of the trickle down mentality of new policies and regulations that get put in place to control the actions of the President. The precedent being set would seem like "If the President's appointment is subject complete deferral until a new term comes, then every year when federal judges make their exit, they could be blocked from new appointments during an election year making the federal court system a mess of incumbencies and vacancies. It does not make sense and it flies in the face of judicial, political, and practical reason. 

As a result, my final statement on the matter is that we must allow the President to act within his Constitution powers. For Senators who wish to impede that, they are violation of their duty to allow him appoint. In not carefully considering any appointment he makes and merely invalidating it because he is a Democrat and is seeking a more liberal justice on the Court and who has the proper vetting, it is almost tantamount to treason by holding up the legal system and handicapping it from the top-down. 

It is my sincerest hope that we honor Scalia and his jurisprudential trend to "say what the law is" and abide by it as it was promulgated in our Constitution. 

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