Obama Can Suggest Supreme Court Justice To Replace Scalia, However, The Senate Has NO Responsibility To Take Up The Issue.

The Senate is under no obligation to seat an Obama Supreme Court nominee

Posted on February 18, 2016 by Bob Livingston

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A great debate has erupted in the wake of Supreme Court Justice Antonin Scalia’s passing. Should the undocumented usurper currently despoiling the People’s House nominate a replacement for Scalia? And if he does, should the senate consider him or her, or should it defer until next year after the lame duck president is replaced?

That the appointment of one man in a nation of more than 323 million people  has created such a hue and cry and further divided the country along partisan lines is a testament to how far removed the U.S. is from a republican form of government.

Thomas Jefferson, in a letter to Williams C. Jarvis, wrote that “[T]o consider the judges as the ultimate arbiters of all constitutional questions… would place under the despotism of an oligarchy.” And an oligarchy — a small group of people having control of a country – is where we find ourselves today, as evidenced by recent Supreme Court rulings that have overturned the will of the people.

In fact, Scalia himself, in his dissent in the Obergefell gay marriage ruling, said much the same thing:

This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.

Jefferson is not the only Founding Father to take issue with the notion that unelected judges should have the power to rule the people through the specious notion of “judicial review,” a power not granted the Supreme Court in the Constitution, nor approved of by many of the Founders, but usurped by John Marshall in the case of Marbury v. Madison.

James Madison thought the framers may have been going “too far, to extend the jurisdiction of the court generally to cases arising under the Constitution, and whether it ought not to be limited to cases of a judiciary nature. The right of expounding the Constitution, in cases of this nature, ought not to be given to that department.”

In a letter to John Brown in 1788, Madison wrote, “[R]efusing or not refusing to execute a law to stamp it with its final character… makes the Judiciary department paramount in fact to the Legislature, which was never intended and can never be proper.”

Patrick Henry, during the Virginia Ratifying Convention, presciently expressed fears that the federal judiciary would destroy state judiciaries, and called it “impracticable, or, if reduced to practice, dangerous in the extreme.” To Henry, state judiciaries were “the sole protection against a tyrannical execution of the laws.”

George Mason said the judiciary’s “effect and operation will be utterly to destroy the state governments; for they will be the judges how far their laws operate… To those who think that one national, consolidated government is best for America, this extensive judicial authority will be agreeable; but I hope there are many in this Convention of a different opinion, and who see their political happiness in their state governments.”

As to the argument over whether the president is obligated to make an appointment and the senate must approve – or even consider — that appointment, the constitution and law and precedent are clear.

Under Article II, Section 2, the president “shall have Power… and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint… Judges of the supreme Court…”

So Obama may nominate a replacement for Scalia, but the senate is under no obligation to confirm or even hold hearings or discuss that replacement.

There are decades of precedent of not confirming Supreme Court justices in an election year. And in fact, the courts, including the Supreme Court, are under the jurisdiction of the Congress.

The Judiciary Act of 1789 established that there would be a chief justice and five associate justices. The Judiciary Act of 1801 reduced the size of the Supreme Court by one justice. In 1802 Congress repealed the Act of 1801  and even eliminated one of the court’s sessions.

The Judiciary Act of 1807 increased the SCOTUS to seven justices.  The Judiciary Act of 1837 added two more, bringing the total of justices to nine. A 10th justice was added by the Judiciary Act of 1863,  but three years later, with Republicans concerned after Abraham Lincoln’s assassination that Andrew Johnson would appoint one or more justices hostile to their radical agenda, the Judiciary Act of 1866 reduced the number of justices back to seven. Three years later, congress passed the Judiciary Act of 1869 which restored the number of justices to nine.

So while Article III, Section 1 establishes a “supreme Court,” Congress clearly controls how many justices make up the courts.

But it is a real travesty that the political bent of one person yet to be appointed has become so important in a nation that is reputed to be a republic, or even a democracy.