What would Scalia do?
So the Senate Judiciary Committee said they won’t hold hearings for a new Supreme Court justice until the beginning of the next president’s term. What would Scalia think? Surely, the originalist he is, he’d go back to what the founding fathers would say.
The Constitution doesn’t require senators to hold a hearing, so the Judiciary Committee is on good technical ground. But would they approve? The Constitution doesn’t say. Hmm, if only their thoughts could be found elsewhere. If only they —
Of course! Federalist No. 76. The good, founding father-loving white men of the Senate Judiciary Committee surely must have consulted the federalist papers before making a decision that flies in the face of American history. (By the way, it’s just incredible that Ted Cruz is on that committee, considering he might be the Zodiac Killer.) Surely they knew what they were doing.
THE President is “to NOMINATE, and, by and with the advice and consent of the Senate, to appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not otherwise provided for in the Constitution.
Interesting! Looks like A-Ham thought the advise-and-consent of the Senate should come after the president nominated someone. Not that the Senate should advise the president not to nominate someone at all. But let’s read on. Maybe there’s something more:
But might not his nomination be overruled? I grant it might, yet this could only be to make place for another nomination by himself. The person ultimately appointed must be the object of his preference, though perhaps not in the first degree. It is also not very probable that his nomination would often be overruled. The Senate could not be tempted, by the preference they might feel to another, to reject the one proposed; because they could not assure themselves, that the person they might wish would be brought forward by a second or by any subsequent nomination. They could not even be certain, that a future nomination would present a candidate in any degree more acceptable to them; and as their dissent might cast a kind of stigma upon the individual rejected, and might have the appearance of a reflection upon the judgment of the chief magistrate, it is not likely that their sanction would often be refused, where there were not special and strong reasons for the refusal.
Sounds good! Senate can reject someone that the president nominates. That makes sense. It’s a good way to keep presidential power in check, even if it’s used in just a potentially symbolic way. It’s important to vet members of the Supreme Court. Anyway, that would be super unlikely, Hamilton said, and would only happen in “special and strong reasons.” The reason the senators offered for refusing to hold hearings, if I recall correctly, is because 2016 is a multiple of 4.
To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.
The Senate has to make sure Barry doesn’t nominate Malia (or himself, guys). Wasn’t really too worried about that.
Okay, okay, but that’s Federalist No. 76. How many were there? That’s right, 81. Hamilton wrote 51. Yes, I know. Okay. Federalist No. 77 is the other one that deals with judicial appointments. What’s the first sentence in that one?
IT HAS been mentioned as one of the advantages to be expected from the co-operation of the Senate, in the business of appointments, that it would contribute to the stability of the administration.
Oh, and Hamilton snuck a prediction in there:
The censure of rejecting a good [Supreme Court Justice] would lie entirely at the door of the Senate; aggravated by the consideration of their having counteracted the good intentions of the Executive.