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The Invisible Constitutional Crisis

Options for the US Supreme Court's Pending Vacancy

The United States is in the midst of a constitutional crisis. Yes, that’s right: one of the most important crises of our constitutional republic and it is going virtually unnoticed as a crisis. No, I am not talking about the Trump candidacy — though reprehensible in multiple ways, it is perfectly legitimate in constitutional terms. Instead, I am talking about the current vacancy on the US Supreme Court. In “The Supreme Court Will Be a Disaster If a Justice Dies During a Republican Congress,” a prescient 2014 article in the New Republic, Jeffrey Rosen predicted this constitutional crisis. Yet, remarkably, now that we are in it, there seems to be so little attention to the crisis itself.

The US Constitution grants the President the power to appoint justices to the US Supreme Court “by and with the advice and consent of the Senate” (Article 2, §2.2). Many allies of President Obama have called on the Senate to “do their job” by meeting with his nominee for Supreme Court Justice, Judge Merrick Garland, and then holding hearings and a vote to fill the vacancy. However, the Constitution does not require the Senate to hold hearings and a vote. Therefore, at least constitutionally speaking, the Senate is not not doing their job. Yet, the Constitution also provides the President with a response to a Senate that withholds advice and consent: the President can accept inaction as tacit consent to make the appointment.

Herein lies the constitutional crisis: in effect, by accepting the Senate’s claim that only with their hearing and a vote can a presidential appointment receive “advice and consent,” the President and the Senate have amended the Constitution. This is a crisis: nowhere in the Constitution is there a mechanism for shifting power from one branch to another, short of a Constitutional amendment — which is possible only with the votes of two-thirds of each House and the votes of three-fourths of the states.

What is happening is akin either to the Senate declaring that they, not the President, are Commander-in-Chief or if the Speaker of the House declared that she or he, not the President, had the power to give the State of the Union Address. Such claims would rightly be deemed patently false. Yet, in refusing to act with the Senate’s tacit consent, President Obama is allowing the US Senate to usurp presidential appointment powers. After all, if the President accepts (again, I mean constitutionally speaking) that the Senate has appointment power in an election year, why not in the second term, or any term for that matter, of a President with whom the congressional majority disagrees?

There is, however, a clear way out of this constitutional crisis. What follows is a step-by-step plan for President Obama to rescue the Constitution from permanent damage:

Step 1. President Obama should send a letter to the Senate leadership (Senator Mitch McConnell) that explains his intentions. The letter should remind the Senate that they have received the nomination of Judge Garland. It should also specify that the Constitution grants the Senate with the opportunity to provide advice and consent.

Step 2. The President should establish a clear timeline (say, the end of the year) by which the Senate has two options: (A) They hold hearings and vote on the nominee, or (B) they choose neither to hold hearings nor to vote on the nominee. The timeline is crucial. According to a New York Times analysis, the Senate has never taken more than 125 days from the date of nomination to vote on a nominee, and the average is only 25 days for confirmation or rejection (or withdrawal). President Obama nominated Judge Garland on March 16, 2016.

Step 3. If the Senate chooses option A, President Obama should reaffirm the principle that he will accept their vote as consent (or rejection). If the Senate votes to accept, the President should place Judge Garland on the US Supreme Court. If the Senate votes to reject, the President should remove Judge Garland as nominee and nominate someone else (and begin this process anew).

If, however, the Senate chooses option B, the President should interpret their inaction as tacit consent and place Judge Garland on the Supreme Court. In so doing, President Obama will be fulfilling his Constitutional duty to fill the vacancy on the Supreme Court.

Critics might worry the principle of tacit consent establishes a dangerous precedent in American politics. Yet, this principle is embedded into our Constitution. From political theorist John Locke, the Founders understood that a republican form of government (i.e., representative democracy) could never succeed if it depended on all citizens actively consenting (in the form of a vote) to all elections and policies. Instead, they understood, if citizens chose not to vote, they would be tacitly consenting to the democracy in which they lived. Moreover, in regular Senate (and House) business, if a member misses a vote, her or his vote is not counted as a “no,” it is accepted that the member tacitly consents to the process (even if she or he might have voted against the bill). If a member of Congress opposes a bill or nomination, she or he has ample opportunity to register that objection with a no vote.

Critics might also suggest, though the Senate’s inaction is a problem (or maybe a solution), it does not in and of itself create a constitutional crisis. Or, to think of it differently, critics might suggest that this is simply politics, exactly the kind of push and pull that James Madison envisioned. The difference between the proper working of checks and balances and this constitutional crisis, however, is that checks and balances gives each branch, and each perspective within the branches, ample opportunity to raise objections and vote. The Constitution establishes the rules within which these debates should occur. In this case, the Senate and the President (both through inaction) are changing the rules without going through the process of amendment clearly established in the Constitution. This constitutes the very definition of a constitutional crisis: an event in which some part of the government fails because unforeseen circumstances challenge the constitutional system itself — precisely what is now happening to the US Supreme Court.

Therefore, it is time for President Obama to notify the Senate of an active advice-and-consent deadline, after which he will accept their tacit consent (and lack of advice) as binding and will seat Justice Garland. This notice must be provided to ensure that future US presidents provide ample time to the Senate for advice and consent. Just as important, however, is for the President to do his constitutional duty and fill the empty seat on the Supreme Court.

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Matthew Filner

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