A Plebiscite on the Supreme Court

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By Phil Kerpen

President Obama has shown nothing but contempt for the legislative branch.   Now when the president who dismissively said “I've got a pen and I've got a phone.  And that's all I need” picks up that phone and calls the Senate for action on a Supreme Court nomination, the Senate should say no.  No hearings, no votes.  The stakes are too high and the differences are too stark – and the only way conservatives can win is to take their case directly to the American people in this year’s election.

While filibustering Bush judicial nominees in 2005, Harry Reid explained: “The duties of the United States Senate are set forth in the Constitution of the United States. Nowhere in that document does it say the Senate has a duty to give presidential nominees a vote.  It says appointments shall be made with the advice and consent of the Senate. That is very different than saying that every nominee receives a vote.”

After Democrats took control of the Senate in 2006, they moved from filibuster to a total pre-emptive blockade of Supreme Court justices, led by Chuck Schumer.  “Chuck Says He’ll Veto the Next Alito,” the Observer headline screamed. “One more justice would have made it a 5-4 conservative,” Schumer said. “That won’t happen.”

It is possible Justice Scalia would have retired and allowed President Bush to name his preferred replacement, Frank Easterbrook, had the 2006 elections turned out differently.  But Democrats took control, and that had consequences.

It wasn’t the first time.  “The President's supporters insist vehemently that, having won the 1984 election, he has every right to try to change the Court's direction.” The New York Times editorialized in 1987: “Yes, but the Democrats won the 1986 election, regaining control of the Senate, and they have every right to resist.”

And they did resist, successfully thwarting Robert Bork’s nomination on purely ideological grounds and only relenting when Reagan appointed the left-leaning Anthony Kennedy.

Similarly, the 2014 Senate landslide was a sharp rebuke not just of Obama’s agenda but of his penchant for sidestepping Congress on issues like immigration, labor, and energy policy.  The American people wanted a Senate that would finally put the brakes on Obama’s executive power.

This is a president who famously pretended the Senate was in recess when it was actually in session, installing non-recess “recess appointees” to steer a radical union agenda at the National Labor Relations Board.

The Supreme Court rebuked that move in a stinging unanimous 9-0 decision in Noel Canning – which now stands as the impediment to Obama sidestepping the Senate with a recess appointment outside of what it calls “unusual circumstances.”

Justice Breyer’s opinion for the court included this wonderful, and now likely essential, line denying Obama any wiggle room: “It should go without saying—except that Justice Scalia compels us to say it—that political opposition in the Senate would not qualify as an unusual circumstance.”

More recently, the president concluded a global warming agreement in Paris that the rest of the world accurately describes as a treaty.  President Obama, knowing that a treaty effectively banning coal-fired power plants in the United States while allowing China and others to build hundreds of them would be a political disaster in the Senate, is simply planning to deposit ratification documents at the United Nations on April 22 on his own imagined authority – without submitting the treaty to the Senate.

One of Scalia’s final official acts was agreeing to issue a stay against the EPA greenhouse gas rule Obama is relying on to implement the Paris treaty without Congress.  Obama’s own liberal Harvard law professor Laurence Tribe has slammed the EPA rule, saying: “Burning the Constitution should not become part of our national energy policy.”  Nonetheless, all four Democratic appointees dissented on the stay – and the final decision will likely rest with whoever is ultimately confirmed to Scalia’s seat.

So you can add energy policy to the lengthy list of things hanging in the balance with control of the court that rewrote Obamacare twice and stands ready, with one more liberal vote, to hobble the First Amendment and the Second Amendment.

Antonin Scalia stood for the proposition that the law and the Constitution are what they say they are, and that made him a villain to elites who use the courts to impose liberal ideas that could not succeed through legitimate democratic and constitutional processes.

Any judge appointed by President Obama would, like Obama himself, see legislating from the bench not as a problem to be fixed but as an opportunity to move the country even more sharply to the left.

As Scalia said in his famous Casey dissent: “the American people love democracy and the American people are not fools… Value judgments, after all, should be voted on, not dictated; and if our Constitution has somehow accidently committed them to the Supreme Court, at least we can have a sort of plebiscite each time a new nominee to that body is put forward.”

The timing of Scalia’s death, after voting had already begun to elect a new president, sets up just such a plebiscite.  We should dispense with the tired posturing, admit the president and Senate are deadlocked, and allow the American people to decide which type of nominee they want.