McConnell and Obama Both Wrong on Scalia Replacement

McConnell and Obama Both Wrong on Scalia Replacement


One of the dumber debates in recent history has broken out in the wake of Justice Antonin Scalia’s passing. Senate Majority Leader Mitch McConnell has suggestedthat President Obama shouldn’t nominate a replacement for Justice Scalia because Obama is in the last year of his final term.

Opponents, including the president himself, have responded that the Senate has a constitutional duty to bring Obama’s appointments to a vote and to confirm one, if qualified.

Both sides are completely wrong. The President has the legitimate authority to nominate a successor on every day of his presidency, up to and including the very last day. That precedent was set by no less than the second president of the United States. As Elizabeth Warren astutely observed,

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.

But neither can be found the words “shall bring to an up or down vote” or anything to the effect that the Senate is required to take action on the President’s nominees. The Constitution was deliberately constructed so that inaction would be the starting point in all matters. The reason for the separation of powers was to ensure that things didn’t get done efficiently within the federal government, because efficient government is a threat to liberty.

Democrats cite this latest controversy as another example of Congress deliberately “obstructing” the President, implying they are overriding the wishes of the people who elected him. We heard the same nonsense about the Democratic Congress during Reagan’s presidency. It doesn’t compute. The people who elected the president also elected the sitting Congress, in both cases.

That Congress can in any way “obstruct the president” is a horrible, fascist, un-American idea. It assumes the lives of hundreds of millions of people are to be ruled by the wishes of one person, with Congress merely a procedural rubber stamp to legitimize the emperor’s policies. This is autocratic thinking straight out of Hobbes’ Leviathan, which asserted an elected assembly could be tolerated as long as it conformed without exception with the wishes of the absolute monarch.

The American republic supposedly rejects this idea. The U.S. Constitution assumes Congress is the supreme power, vested with the “sovereign functions of legislation,” as Thomas Jefferson put it. The President is supposed to be a subordinate executor of its laws.

James Madison actually warned his countrymen in Federalist #48 that the chief danger to liberty resided in the legislative body, because “the executive magistracy is carefully limited.”