In an act Hillary Clinton has labeled "constitutional
malpractice" and a "San Francisco Chronicle" editorial "a dereliction of duty," the Republican-led
Senate has actually gone much further by committing what should rightly be condemned
as an "originalist sin" against America's founding document.
In refusing even to consider a nominee to replacement the most ardent advocate of 'originalism,' in Supreme Court history, Senate leaders could hardly have positioned themselves more directly in opposition to both the language of the Constitution as well as the late Justice Antonin Scalia's philosophy of "original intent."
In this instance, the Senate's pretext, invented out of thin air, that the next president rather than the current Chief Executive should make the nomination, flies in the face of both the literal wording of the Constitution and its original spirit. We have only one president at a time, like it or not, and his or her term runs for four full years.
The Constitution is clear and unambiguous on the duty of President to nominate, and with the advice and consent of the Senate, appoint Judges of the Supreme Court. Nowhere does it diminish that power toward the end of the Chief Executive's term. And nowhere in the document does it reduce the responsibility of the Senate to advise and consent in a timely manner, rather than delaying the process hoping for a more favorable political climate.
If Senate Republicans truly want to be operating under a different Constitution, it is certainly their prerogative to attempt to amend or replace it through accepted constitutional means. Unilaterally altering the Constitution to fit current political interests or styles, however, is not one of them. Indeed, it is merely the latest and most transparently unconstitutional expression of the obstructionist politics they have practiced throughout the Obama presidency.
In their blatant "if you won't play by our rules, we'll take the marbles and go home" approach, Republican leaders are directly threatening both the spirit and practical ability to govern the Founders built into their carefully balanced constitutional system.
For despite their many differences, those first 'originalists' shared a basic agreement about the functional authority of the state. By carefully dividing power and sharing responsibility, their intent was to prevent any one individual, faction or branch from misusing its share to further narrow, partisan ends. The system they created required adherence to established rules and a fundamental willingness to compromise.
We've been through passionate struggles over the proper exercise and limits of governmental power before. Pre-Civil War attempts by states to "nullify" federal authority, like mid-twentieth century southern efforts to avoid complying with Supreme Court civil-rights rulings through the invented doctrine of 'interposition', were rightly and thoroughly discredited. Though frequently at great risk and cost, the Constitution prevailed.
Similarly, any hope of legally and peacefully resolving today's bitter disagreements over such issues as individual and civil rights, gun rights, abortion, religious freedom, immigration, free speech and national security likewise requires adherence to the essential boundaries and functions set down in the national compact all our elected officials swear to uphold.
As a breathtakingly nakedly political act, the Senate's tactic exemplifies precisely the dangers the Founders sought to prevent when they designed a government based on fundamental laws rather than the temporary passions and arbitrary interests of individual men or powerful factions.
Crossing that line is not only indefensible on Constitutional grounds but a dangerous political precedent. Even more tragically, as a form of 'nullification' by other means, it makes a mockery of the principle of rule by law America continues to promote around the world.
Les Adler is a commentator on current events and an emeritus profess of history at Sonoma State University.