Conservatives, let’s stop Congressional obstruction and demand Obama make a Supreme Court Justice recess appointment ASAP

To keep future Senate majorities from usurping rightful Presidential authority to fill a Supreme Court seat, demand that President Obama make a recess appointment of a Justice on January 3. Sign this petition: https://wh.gov/it4xr

The current majority coalition is a big tent. It includes many right-wingers who want a Supreme Court (SCOTUS) to defang overreaching regulation of commerce, to limit and redefine personal liberties that resulted in Roe v. Wade and other freedoms advanced by ‘liberal activist judges’ in the 1960s and 1970s. In addition to right-wingers focused on results “by any means necessary,” there are true conservatives who understand that both ends and means matter. True conservatives defend the Constitution, not just in letter but in custom and practice. We, as progressives, address you in a spirit of understanding the profound significance of precedents, not just in law but in constitutional practice. We ask you to join a cause that prizes principles and process over results; that reveres the wisdom of tradition. We recognize, with other conservative philosophers, economists and lawyers, that no contract can completely define all contingencies and plan for them; we recognize that custom and traditions fill in the gaps. Whether to an originalist who focuses on historical context or to a more flexible interpreter, it has long been clear that traditions have helped avoid highly destructive, take-no-prisoners, ruthless constitutional showdowns among the three branches of government. For example, we respect that President Nixon complied with SCOTUS decisions limiting his power to impound, to invoke executive privilege and to pretend that blatant obstruction of justice was easily justified by invocation of the vague standard of ‘national security.’ FDR backed down from “court packing.” Our traditions have their own power, and should have their own power. Even when the immediate and narrow political interests of one or another party are being highly frustrated, these traditions have developed and they have their own wisdom. The Republican Senators’ argument this fall that “eight is enough” and that court shrinkage was a fine tactic is a gross violation of traditions that FDR came to respect after his court packing was defeated, traditions that have been enshrined in our civics textbooks for good reason, for good order, for good governance.

So, too, there has been respect for the legitimacy of both Presidential appointment power and Senatorial advise-and-consent power. Until 2016. We ask your support in setting a precedent. The precedent is that breaches of tradition like this are to be punished. A good and legitimate judiciary and a good government needs some predictability and good order, and that requires defense of the idea that the electorate ‘hires’ its representatives to work for the People and that they ‘get to use their powers.’ Even Gerald Ford, who received not a single electoral or popular vote for national office, was empowered to appoint a SCOTUS justice, and was allowed by Congress to do so (while in the last 13 months of his ‘minimally legitimate’ term). The Senate? Controlled by majority Democrats. And this all happened in manner timely, even though as a Congressman Ford had sought five years earlier to impeach because of ‘liberal opinions’ the Justice Douglas whom he was replacing!

Not all precedents are good, of course, but the weight of tradition is to be respected. Traditions of inter-branch comity and respect, sometimes in pomp and custom as at State of the Union speeches, sometimes in sacrificing political gain for principles of good governance, are valuable and help us all maintain our freedom and keep our government from working even more poorly than it already does.

And yes, weighing tradition does not mean slavish obedience to past practice. We understand the painful awkward precedents set by SCOTUS itself by the Bush v. Gore decision, the Buck v. Bell decision (citing “three generations of imbeciles are enough” to support eugenic sterilization), the Plessy v. Ferguson decision, Japanese internment decisions, and of course the Dred Scott decision. Some of those precedents are still “on the books.” Eugenic sterilization is still constitutional, and we are all the poorer for it. But: We are stronger for the 94th Congress’ discharge of the Senate’s advise and consent responsibility to President Ford’s nomination of a justice. We are stronger for the failure of FDR’s court packing proposal. We are stronger for President Nixon’s and President Truman’s obedience to controversial SCOTUS decisions limiting executive power.

We will be stronger for President Obama’s use of his full presidential power to uphold tradition and to punish its breaches. Join us and ask Obama to make a Recess Appointment on January 3. Sign this petition to the White House: https://wh.gov/it4xr

Authored by Citizens for a Level Playing Field