Opinion: Constitution gives Senate discretion

Cincinnati Enquirer | Opinion

Mark R. Weaver teaches at the Ohio State University College of Law. He previously served as Ohio deputy attorney general and spokesman for the U.S. Department of Justice. Twitter: @MarkRWeaver

There’s an easy way to win a bet about American government. Ask someone what the U.S. Constitution says about how long a Supreme Court justice serves in office. The other person will claim that a justice is appointed for life. You’ll win the bet when you tell your unsuspecting mark to check Article Three, Section One, where the Constitution states that “Judges” of the Supreme Court may serve only “during good behavior.” Judges can be impeached and lose whatever life tenure they imagined they had.

This is just one example of how the text of the Constitution can differ from what most Americans think. There’s another much more practical example and it’s squarely on display in the political skirmish surrounding President Obama’s nomination of Merrick Garland to replace Antonin Scalia.

Get ready to lose another bet if you agree with this assertion: the president appoints justices to the Supreme Court.

Again, the Constitution helps disprove this claim. The president’s authority derives from Article Two, Section Two, which states he “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the Supreme Court.

The first verb – “nominate” – spells out what the president may do. The second verb – “appoint” – describes what the president and the Senate may do together. These different words instruct our leaders to take different, co-equal roles in this process.

All Americans, born here or naturalized, trace our national lineage to those brave souls who landed on the shores of this continent in search of freedom from religious and government oppression inflicted by the power players of Europe. These pioneers of democracy withstood British rule only long enough to win independence and then find the right men who could build a new nation girded by the consent of the governed.

One of the most vexing issues confronting those men, the framers of our Constitution, was how to ensure that no official could employ government power as a spear against the people for whom it was meant to shield. They knew, as do we, that unchecked leaders can use power for profit, plunder and prejudice.

Their solution was as easy as the timeless childhood frolic of rock, paper, scissors. Everyone who plays this game quickly realizes that none of the symbols is all-powerful on its own. Rock might crush scissors but paper covers rock. The basic principle of why rock, paper, scissors is fun is the underlying reason why American checks and balances are fair. No branch has more power than the other.

Unfortunately, American public opinion on this topic has shifted. Far too many people think, incorrectly, that the president is somehow “in charge of” the country. But American government is an amalgam of federal, state and local officials who serve in three branches at each of those levels: executive, legislative and judicial. Spreading the power reduces the risk of corruption.

So who fills a vacancy on the Supreme Court? If you think it’s the president, you’re right. And if you think it’s the Senate, you’re also right.

In “Federalist 76,” Alexander Hamilton discusses the important difference between nominating and appointing. He even pushes back against those who think the power of selecting justice should rest solely with the president. He describes the advice and consent clause as a “powerful” and “excellent check” against potential presidential misuse of power. And, in “Federalist 67,” Hamilton reminds us that, under the Constitution, “the ordinary power of appointment is confined to the President and Senate jointly.” Jointly.

This means that Obama has every right to nominate someone without any legal quarrel or question. And, his equal partner in the appointment – the Senate – has every right to give the advice and consent that they do not think the time is right to confirm someone, also without legal quarrel or question.

We’re all entitled to our own opinion as to what the president or the Senate should do in the face of a high court vacancy. But the words of the Constitution spell out what they are each permitted to do.

And, in an election year like this, the safest bet is that Democrats and Republicans alike will cloak themselves in constitutional rhetoric while advancing a position that will benefit them politically.