Opinion, Berkeley Blogs

What would Nino do?

By Mark Peterson

A profound irony hangs over Republican politicians, pundits, and presidential candidates as they mourn the unexpected death of Antonin Scalia. They laud him as an intellectual giant for his promotion of Constitutional originalism and statutory textualism. Yet in nearly the same breath, they call for a suspension of the procedures the Constitution explicitly defines, insisting that President Obama should not nominate Scalia’s successor during his last year in office, and if he does, that the Senate must delay or obstruct any confirmation vote. Perhaps the political stakes are too high for any of these self-proclaimed consistent conservatives to ask the obvious question: what would Nino do?

Antonin Scalia
Justice Antonin Scalia

Frankly, this is an easy one. Originalists and textualists set aside the accretion of practices and precedents that have emerged over decades of political haggling. Instead, they look to the Constitution’s text, determine what its framers intended with respect to the President’s nomination and the Senate’s confirmation of judicial appointments, and whether the temporal stage of the President’s (or Senators’!) term in office has any bearing on this process.

The text of the Constitution could not be clearer. Article II, Section 2 says: “The President … shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Judges of the supreme Court.” Regarding the timing of such appointments, the Constitution says only one thing: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

No one is proposing that President Obama should make a temporary recess appointment of a Supreme Court Justice, so this passage might appear to be irrelevant. Except that it speaks directly to the other pillar of Scalia’s intellectual legacy, original intent.

This passage is one of many in the Constitution that make it crystal clear that the framers intended to create a multi-layered representative government that would be continuously and perpetually in effect. The Presidency would be an executive office but with legislative powers to sign or veto laws, and it would be an office that represented the people by virtue of a filtered electoral process. The Senate would be a legislative body but with certain executive powers, such as approving appointments to office and international treaties. It too would represent the people by virtue of a filtered electoral process, with Senators chosen by elected state legislatures, though the Constitution has since been revised to allow for direct election by the people of each state.


Even so, it is clear that of the two, the President’s claim to represent the people is somewhat stronger than the Senate’s. The number of Senators bears no relationship at all to the population size of the states they represent, whereas the Electoral College that chooses the President is strongly calibrated to the states’ populations. But in either case, the Constitution makes not the slightest suggestion that the powers of the President or Senators are enhanced or diminished depending on the chronology of the elected official’s term in office.

In fact, the passage about recess appointments suggests the opposite. The framers fully intended that the national government they were creating would be in continuous operation, always there to recognize and serve the interests of the people who created it, despite the vagaries of legislative session calendars and the capricious events that disrupt the lives of us all.

This claim is supported by language throughout the Constitution that calls for elections at precise intervals, explains the procedures for filling vacancies (Article I, Sections 2 and 3), ensuring that there would be no power vacuums, no hiatus in the capacity of the government to conduct the people’s business.

The notion that somehow the Constitution, either in its text or in the intent of its framers, implies that the President’s ability to represent the people and conduct his official duty to appoint Supreme Court Justices is diminished in the fourth year of his elected term of office is patently absurd. It makes just as much sense to say that one-third of the Senators’ ability to represent the people and do their duty to offer advice and consent on judicial nominations should be suspended in an election year. Yet we hear no voices from the right making this argument. All the candidates currently telling us what they would do “on day one” if elected know full well that in our system, the powers and duties of elected officials begin on their first and continue to their last day in office, when they are handed over intact to their successors.

All self-proclaimed consistent conservatives and admirers of Scalia’s judicial philosophy should put their principles where their mouths are and answer the question: What would Nino do?