After having recently read a few of the mostly conservative and mainstream press pieces explaining why Senate Republicans can legally stop President Obama from filling the Scalia vacancy, I conducted an internet search for historical facts that would challenge the contention. I discovered an executive action by President Theodore Roosevelt, and two major treaties, SALT II by President Jimmy Carter, and START II by President George H. W. Bush, that each serve as precedents Obama can invoke to appoint, rather than merely nominate, a Supreme Court judge. Before getting to these precedents, let’s review the basic Constitutional facts.
The phrase “Advice and Consent” is used only twice in the U.S. Constitution, both instances appearing in the same sentence in Article II, Section 2, paragraph 2, where it states:
[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
We notice that while a president’s power, by and with Advice and Consent of the Senate, to make treaties requires a full two thirds of the Senators present to concur, the president’s similar power to appoint judges to the Supreme Court requires only the Advice and Consent of the Senate majority. The first key point here is that a president’s power to make treaties is more severely constrained by the Constitution than is his power to appoint Supreme Court judges.
Now let’s look at the first precedent. In 1905, President Theodore Roosevelt, a Republican, negotiated a “treaty” without Senate Advice and Consent for a full two years before the Senate intervened. On page 510 of his 1913, An Autobiography, Roosevelt details his actions and reasoning as follows:
The Constitution did not explicitly give me power to bring about the necessary agreement with Santo Domingo. But the Constitution did not forbid my doing what I did. I put the agreement into effect, and I continued its execution for two years before the Senate acted; and I would have continued it until the end of my term, if necessary, without any action by Congress…
All that they had really done was to shirk their duty. Somebody had to do that duty, and accordingly I did it. I went ahead and administered the proposed treaty anyhow, considering it as a simple agreement on the part of the Executive which would be converted into a treaty whenever the Senate acted.
Roosevelt’s “agreement” had the full force of law. Based on this precedent, Obama can appoint a Supreme Court judge, who, as with Roosevelt’s action being lawful, can exercise the duties of a Supreme Court judge until the Senate formally accepts or rejects the appointment.
For stronger precedents granting President Obama the legal right to appoint an unratified SCOTUS judge, especially in response to Senate Majority Leader Mitch McConnell’s potentially unlawful delinquency in holding confirmation hearings, we can look to the SALT II and START II treaties with Russia, each of which were enacted, and had the full force of law, for years without ever having been ratified by the Senate.
Contrasted with the non-legal and non-binding position Republicans have of late referred to as the "Biden Rule,” under the present circumstances President Obama’s right to appoint a Supreme Court Judge is far stronger and more Constitutionally-protected than is the McConnell’s contention that he can legally prevent the Senate from formally considering any Obama nominee.
We can cite Roosevelt’s statement, “The Constitution did not explicitly give me power to bring about the necessary agreement with Santo Domingo. But the Constitution did not forbid my doing what I did,” and the SALT II and START II treaties, and reason that because of the less stringent Constitutional guideline for appointing Supreme Court judges, President Obama has enough legal ground to appoint a judge to fill the Scalia vacancy. An important point here is that the U.S. Constitution makes no additional statements on the matter, leaving any interpretation to a federal court hearing that has yet to take place.
Some who fear there not being enough precedent for Obama to go forward on this with a clear conscience and sufficient legal backing can take solace in recalling how for decades legal precedents limited campaign donations until the Republican-led Supreme Court upended those rulings with Citizens United v. FEC, or in recalling how the 2000 Republican-led Supreme Court stopped the Florida presidential election vote recount when it became clear that Democrat Al Gore would defeat Republican George W. Bush unless they stopped that recount.
Let’s follow the process outlined above, if carried through to its end without Mitch McConnell allowing Obama’s nominee a fair hearing and vote.
1. President Obama, using the 1905 Roosevelt action, and SALT II and START II treaties as precedents, appoints a judge to fill the SCOTUS vacancy. The judge is seated with the other eight judges, and the new nine-member Court’s balance of power becomes 5-4 in favor of the Democrats.
2. A friendly suit is initiated in Washington D.C., a jurisdiction whose Appellate Court is presided over by a majority of Democratic judges, and this court, based on the argument that Mitch McConnell’s delinquency is both unconstitutional and expressive of bad faith, and on the Roosevelt, Salt II and Start II precedents, affirms Obama’s appointee.
It is especially important to note that Obama is acting from executive necessity in response to McConnell’s refusing to initiate the Advice and Consent process that the Constitution appears to mandate. While some may contest this interpretation, President Obama has more than enough legal justification and public support to appoint the judge, and have the courts ultimately determine his action’s constitutionality.
Timing is important. Obama’s appointment would be best made after a strong majority of voters become fed up with Republican Senators’ refusing to consider any Obama nominee. This approach would motivate Democratic and Independent voters to exact a price on Republican candidates in November’s election.
On hearing that President Obama is contemplating such moves, McConnell may finally agree to give Obama’s nominee an up or down vote. But unfortunately for the GOP, that is only the beginning of the Republican Party’s problems.
It takes 3/5ths of the Senate to end debate on the confirmation or rejection of a Supreme Court nominee. If President Obama selects someone with strong Republican backing, Republican Senators may wish to speedily confirm or reject the nominee so that their unreasonable attacks are not seen by millions of viewers day after day. However Democratic Senators can decide to keep the hearings open for two, or three, or even four months, granting a captivated national audience ample opportunity to see how corrupt and mean-spirited the Republican Party has become, and why it is important to elect a Democratic president, and Senate majority in November. To counter this strategy, Republicans could invoke the nuclear option of not allowing Democrats to filibuster Supreme Court nominees, but would likely fear such a move would be used against them by a 2017 Democrat-led Senate.
Progressives may be able to force the Republicans to cave without President Obama having to lift a finger on the matter simply by plastering the Internet with this “Teddy Rule - SALT II - START II” threat. Were this to happen, Mitch McConnell and Republican Senators may decide hastily to open confirmation hearings on President Obama’s nominee.
If the Democratic Party takes control of the Senate in November, President Obama has yet another way that he can appoint a SCOTUS judge, and Republicans would be powerless to stop him. President Obama’s term of office, formally ending on January 20, 2017, extends two weeks into the new congressional session, which begins on January 13, 2017. So, he can nominate, or re-nominate, a judge, and wait for the Democratic Senate majority to first end the rule allowing the filibustering of Supreme Court nominees, and then confirm the nomination.
Obama and the Democratic Party may win this Supreme Court battle in a big way that includes huge gains in November’s election.
----
Please share this on facebook and Twitter, through a link, or copy and paste the above with my permission anywhere you’d like.
3/8/16 UPDATE: We’ve surpassed 42,000 facebook shares, which means the article has appeared on facebook walls over two million times.
Let’s make it go viral!
For a way to use capitalism to fight climate change: Climate Rescue Capitalism.