Washington’s Wisdom: Advice to the Senate on the Supreme Court Vacancy from a Real Originalist
Washington's Wisdom: Advice to the Senate on the Supreme Court Vacancy from a Real Originalist
Call it good timing.
This afternoon, the United States Senate will observe one of its most hallowed traditions: the annual reading of President George Washington’s farewell address, penned in 1796. Every year, a senator is assigned to read the address into the Congressional Record, and then adding his or her signature to a leather-bound book that is kept by the secretary of the Senate for posterity. This observance began during the Civil War.
This year, the honor goes to Sen. Chris Coons of Delaware – the first state to ratify the Constitution. When Sen. Coons takes to the floor (and C-SPAN) to read Washington’s words, I hope Majority Leader Mitch McConnell will be listening.
Perhaps it will remind McConnell of another Senate tradition: providing Supreme Court nominees with a fair hearing and timely vote.
More than a tradition, it’s the Senate’s constitutional duty.
The Senate’s historical office writes that President Washington’s principal concern in his address “was for the safety of the eight-year-old Constitution. He believed that the stability of the Republic was threatened by the forces of geographical sectionalism” and “political factionalism.”
Two centuries later, with McConnell threatening to use his power to keep a seat on the Supreme Court vacant until well into 2017, we should all be concerned about the safety and stability of the Constitution. Keeping a tie-breaking seat empty on the highest court in the land is unprecedented, extraordinarily reckless, and shows a blatant disrespect for the rule of law and the third branch of government.
Sen. Chuck Grassley, chairman of the Senate Judiciary Committee, the overseer of nomination hearings, got an earful from his constituents last week on the court opening, according to the New York Times. Confronting Grassley for his apparent willingness to aid and abet McConnell’s obstructionism, an Iowa Republican reminded him that providing fair consideration of a nominee is “all about good governance.” Another constituent told Sen. Grassley that delaying any consideration for over a year until a new president is in office “is not representing us. It’s representing your party.”
The annual reading of President Washington’s message continues to be relevant today: our senators should put country before party.
Here are some of Washington’s words that Sen. Coons will read to his colleagues today:
“The Constitution which at any time exists, until changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all. The very idea of the power and the right of the people to establish government presupposes the duty of every individual to obey the established government. All obstructions to the execution of the laws, all combinations and associations under whatever plausible character with the real design to direct, control, counteract, or awe the regular deliberation and action of the constituted authorities, are destructive of this fundamental principle and of fatal tendency. … [Partisan factions] are likely, in the course of time and things, to become potent engines by which cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people and to usurp for themselves the reins of government, destroying afterwards the very engines which have lifted them to unjust dominion.”
Heady thoughts, to be sure, but deeply relevant to the dispute about filling the Supreme Court vacancy in the wake of Justice Antonin Scalia’s death.
Americans rightly expect the Senate to fulfill its responsibilities and provide a fair hearing and timely vote to the president’s forthcoming Supreme Court nominee. Since the 1980s, it has taken no more than 100 days from the date of nomination for the Senate to complete its task. Since the founding of our country, it has taken no more than 125 days. President Obama has over 330 days left in office. There is plenty of time on the calendar.
Moreover, the Senate has a long history of confirming Supreme Court justices during a presidential election year. The Supreme Court does not shut down just because there’s a presidential election in November, and the President’s powers last for four full years. The Senate has confirmed justices during an election year six times. Most recently, the Senate confirmed Justice Anthony Kennedy in 1988. Then, as today, the Senate was controlled by one party and the White House by the other.
If McConnell isn’t interested in President Washington’s warnings about partisanship, perhaps he could review some of his own. “Under the Constitution, our duty is to provide advice and consent to judicial nominations,” McConnell said in 1986. “It is clear under our form of government that the advice and consent role of the Senate in judicial nominations should not be politicized,” he continued in 1990. “Whether it’s small-claims court or the Supreme Court, Americans expect politics to end at the courtroom door,” he argued in 2010.
Americans of all political stripes agree. The Senate should do its job.