Constitution Check: In the Supreme Court vacancy fight, which election counts most?

Lyle Denniston looks at the debate over the next Supreme Court nominee and how the upcoming November presidential and congressional elections may have different impacts on that process.

THE STATEMENTS AT ISSUE:

“The Senate purports to be acting in the public interest by waiting until the next president is elected, on the theory that the next president’s nominee may better reflect a changing will of the people.  But this argument rings hollow because the public has already cast its vote in electing our current president to serve a (second) term – not just three years and two months of it.”

 – Excerpt from a letter sent to Republican leaders of the Senate on March 1 by Debra L. Raskin, president of the New York City Bar Association, urging them to reconsider their plan to take no action on any Supreme Court nominee proposed by President Obama until this fall’s election has been held.

“The American people deserve the right to be heard.  It’s the fair and reasonable approach.  They made their voices heard in 2014 when they signaled they wanted a departure from President Obama’s policies by revoking the Democrats’ Senate majority and expanding Republican ranks in the House of Representatives.  Now, with the stakes as high as ever and the political season underway, we should hear from them again.”

 – Excerpt from a statement by Iowa Republican Senator Charles Grassley, who is chairman of the Senate Judiciary Committee, on March 1 after a White House meeting with President Obama, at which the GOP leaders repeated their plans to resist acting on an Obama nominee to replace the late Justice Antonin Scalia.

WE CHECKED THE CONSTITUTION, AND…

If the American government were organized to fit the British model of the Parliament, with the head of what serves as the executive branch actually serving personally in Parliament and remaining always dependent upon the continuing support of a majority there, it might be that the most recent election could be understood as a direct expression of the will of the American people.

But, under the U.S. Constitution, the president operates independently of Congress, and has a constituency that stretches from coast to coast – the people who voted to put that person in the White House for a set term of four years (and, with reelection, eight years).  While not everybody who votes in a presidential election casts their ballot for the winner, those who do and create a majority for the candidate in the Electoral College have expressed a distinct will about what they want.

Congress, too, operates independently.  But senators represent a single state, and members of the House of Represents represent a single district in a single state.  Their electoral constituencies, then, are more localized, and that is precisely what the Founders wanted – that is, diversity to represent a diverse people.  With all of the winners of those constituencies’ support gathered in the Senate or the House, the chance of any one faction gaining too much power will be remote, or so the Founders believed.  In fact, the Founders thought that the very diversity om the halls of Congress would be a good check on the concentrated power they were placing in the presidency.

Moreover, although one can add up the numbers of winners and losers in any congressional election in any given year, and find out from that calculation who will be the dominant party in the two congressional chambers, it is very hard to argue that such election outcomes constitute an expression of the will of the whole people, as one could, indeed, argue persuasively after an election for the British Parliament: the voters’ creation of a majority creates the executive arm of government in the leader chosen by the Parliament.

Serious students of American federal elections generally talk about how, for members of Congress, “all politics is local.”  The representatives who are chosen to occupy a majority of the 435 seats in the House represent the views of constituent majorities in how many diverse districts they are chosen to represent; so do those elected to each year’s contingent of members of the 100-seat Senate, with each representing a single state.  May a Democrat elected from Massachusetts claim a greater share of the will of all of those who voted in an election, than a Republican from North Dakota?   Aggregating the total of the winners in the House or the Senate in any given year simply does not yield a realistic or reliable expression of the people’s collective will.

With the American system of electing a president keyed to winning a majority not of the national popular vote, but of the electors who will make up the Electoral College and cast the final votes, one might quibble and argue that a president also does not have an unqualified claim to represent the will of the people as a whole.  But it is certainly a less debatable claim than a group of successful candidates for House or Senate might try to make.

There is thus good reason to doubt that President Obama actually lost some of the powers of his office because majorities in the Senate and the House changed as a result of the 2014 elections   One might say that the congressional elections that year were a plebiscite on the president’s policies, but that would be a serious exaggeration.  He was not on the ballot anywhere, and congressional candidates presented to their constituencies a wide variety of views about the president and his policies.

There is some appeal, though it perhaps does not go deeper than the superficial, to suggest that filling a government post as important as a seat on the Supreme Court should await another presidential election, based on the point that the balloting then would – as has been said above – be a new and fresh expression of the whole of the national will.  But would it represent what the people want for only the next three years and a few months of the next president’s term in the White House, or only the next seven years and a few months of the winner of the White House?

Under the constitutional order as it has always existed, the people do not elect a partial president: they elect a president to serve, during “good behavior,” a full term (and, with reelection, two full terms).  The last preceding congressional election’s results do not have the constitutional capacity to shorten the president’s term or to pare down the authority of the office for the final months of White House service.

That is not to say, however, that the Senate has a binding constitutional duty to act on a Supreme Court nominee by a sitting president (remember, the House has no role in the nomination process).  A failure to act, though, does deny a president the opportunity to make a second selection if the first one is acted upon and voted down.  In that sense, doing nothing does have the practical effect of diminishing presidential authority.