The Confirmation Controversy is a Construct, and one Counterfactual Crushes It


JUSTICE SCALIA’s recent passing has predictably occasioned an impassioned public debate about how and when his replacement should be nominated and confirmed.  The true nature of the debate, however, has been regrettably obfuscated by the language of Senator McConnell’s initial statement on the matter.  McConnell appeared to approve a categorical rejection of any Obama nominee, and claimed that “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.”  This justification inspired Democratic ire and, at first blush, the indignation seems justified.  The Senate may constitutionally decline to confirm a nominee, but an up-front refusal to consider a nominee looks like a dereliction of that duty (no matter what past senators from either side of the aisle have said or done).   But, there is a much simpler way to approach this situation which totally diffuses the drama—one that should appeal to my lawyerly friends and that is conspicuously absent from most discussions of this controversy:  the counterfactual.

Imagine for a moment that the President nominated Robert P. George.  Does anyone really think that the Republican leadership would refuse to allow that nomination to go to the floor?  McConnell’s resistance would go up in smoke.  Republicans would leap to approve a conservative candidate, especially given the uncertainty of the upcoming election, since they cannot even trust their own frontrunner to furnish a solid nominee.

So, McConnell’s position is, ultimately, a “shorthand” (as a smart friend of mine said) for the traditional one:  Republicans and Democrats both reject any nominee who, in their estimation, will not faithfully interpret the Constitution.  Republicans just also assume that an Obama nominee won’t satisfy this standard, and therefore seek to assure their base that they won’t confirm an ‘unfit’ appointee.

Is McConnell’s statement ultimately unhelpful, hyper-partisan rhetoric?  Absolutely.  As a Republican, I desperately wish that the Party would have expressed its position on Scalia’s replacement in different terms.  But does this position actually implicate some unconstitutional theory of the Senate’s role in confirming nominees, or represent a position that is practically distinct from what the Democrats would do if the tables were turned?  Not by a mile.

Can we all please calm down now?


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