Scalia’s Vacancy Will Set Off A Structural Power Struggle

Elliot Engstrom Lead Counsel, Civitas Institute
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The vacancy of Justice Antonin Scalia’s seat on the Supreme Court has set off a predictable power struggle over his replacement. As that struggle plays out during the coming months, it will serve as a reminder that, as much as Americans love the Bill of Rights, it is not the most important part of the United States Constitution.

At least, that’s what the framers thought. America’s founders were much more concerned with the structure of government and division of powers than whether any particular right was or was not protected. Think about it — if the courts do not have the power to check unconstitutional actions, or the legislature is unable to rein in a power-hungry executive, then the Bill of Rights has no teeth. The structural ability to protect rights is a condition precedent to their protection.

Conflicts over the constitutional power structure usually play out slowly over time. For example, the courts’ ability to strike down acts of the legislature has waxed and waned over time, reaching a height in the early Twentieth Century and a low during the New Deal. The executive’s power to make war without the consent of Congress has grown slowly to its apex under the two most recent presidents. These structural conflicts are always playing out, but they usually do not happen overnight.

In 2016, Americans will watch a structural power struggle take place over the course of  a few short months. With the vacancy of Justice Scalia’s seat on the Supreme Court, the nation’s eyes are fixed on the division of power between the president and the Senate regarding judicial appointments. The nature of this division is defined in the Appointments Clause of the U.S. Constitution:

[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 what does that mean? What is the proper division of power? As one could imagine, different sides read it different ways. Sen. Elizabeth Warren has read the provision as giving President Obama near-sole discretion to appoint Supreme Court Justices, with the Senate’s involvement little more than a partisan nuisance. This is clearly not the meaning of the clause from its plain language, and given the intelligence of Sen. Warren, she knows that. But facing a power struggle that will very concretely affect the future of the United States, all pretense of political neutrality is going out the window on both sides of the aisle.

So what does the Appointments Clause actually say? It provides that the president “shall” appoint Supreme Court Justices — so he has to do it — with the “advice and consent” of the Senate. “Advice” and “consent” are listed conjunctively — meaning that both must be present. So, the President has a duty to appoint, but his appointments are contingent on the “consent” of the Senate.

And therein lies the question — must the Senate give its consent? The president “shall” nominate. But there is no “shall” for the Senate. And given the Founders’ concern with the structural division of power — and their historical disdain for executive power — this is not an accident. The Constitution imposes a duty on the President, but it provides the Senate with the power to check the president’s pick.

Our founders were specific about how power should be divided amongst the branches of government. The president has a duty to appoint Supreme Court justices. His appointments are subject to the “consent” of the Senate. And the Senate has no duty to give that consent. This is not hackery. It is the plain reading of the Constitution’s division of power regarding Supreme Court appointments. Such structural concerns were of the utmost importance to the founders. We must be sure to give those concerns their proper attention as the debate over judicial appointments moves forward.