Monday, October 31, 2016

Can the Senate Kill the Supreme Court, or Is That just a Phantom Menace?

      This Halloween, a specter is haunting the Supreme Court: the specter of destruction by the Senate. At least, that’s what a recent article on the “Federalist” website claimed, with the mind-bending assertion that the Court could be eliminated completely, simply by the Senate’s refusal to appoint new Justices to replace departed ones:
As a matter of constitutional law, the Senate is fully within its powers to let the Supreme Court die out, literally.
Id. However, this “fantastic beast” of a claim may come more from Cloud-Cuckoo-Land than from the realm of reality.

I. The Supreme Court: An Article III Commandment, Not a Suggestion

     First off, the idea that one branch of the Government can just casually exterminate another branch defies common sense. It also defies the idea of the equality of the three branches, legislative, executive, and judicial.

     Second, although the Senate has a prerogative not to appoint nominees in general, i.e., to refuse a specific nominee: that privilege doesn’t seem to allow them to fail the Constitutional duty to keep the Supreme Court alive in the first place. As Article III, Section 1 of the Constitution declares,
The judicial Power of the United States, shall be vested in one supreme Court . . . . The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior[.]
Id. There aren’t any colorful “maybes” or “outs”, such as, “The judicial Power of the United States, shall be vested in one supreme Court, unless someone makes it fizzle out, then bye bye judicial power! And bye bye to Justices holding their Offices!!” Indeed, the internecine warfare that would occur if one branch of the Government could snuff out another branch, put a “hit” on it, does not seem contemplated by a document with the majesty of our Constitution. Checks and balances are one thing; body-checking a branch of the government to death is another thing entirely.

II. A Smaller Supreme Court Doesn’t Mean No Court at All; or, the Senate’s Duty to Keep at Least One Justice on the Court

     True, the Senate could let the Court get smaller and smaller: e.g., if Hillary Clinton puts forth no acceptable nominee, it might be constitutional—even if imprudent and obstructionist—for the Senate to let the number of sitting Justices dwindle to 7 or even fewer. (See Noah Feldman on Bloomberg, Obama and Republicans Are Both Wrong About Constitution,
All the Constitution requires is that there be a Supreme Court. . . .

     . . . .

. . . But the size of that court is left undefined. In theory, I think, it could consist of a single judge. The interpretation of the Constitution would rest his hands. [sic] You could even call him Anthony Kennedy.
Id.) But merely slimming down the Court doesn’t mean letting the Court actually die.

     Thus, as a reductio ad absurdum: let’s say seven of the current Justices are abducted by renegade Martians or Sith, so that Ruth Bader Ginsburg is the only Justice left alive, and she constitutes a Supreme Court consisting of one person (!!), with American justice “resting in her hands”. She lives to the ripe old age of 130 (!!!), but eventually is “promoted to glory” or “attains her heavenly reward”, as the euphemism goes.

     It seems that at that point, with no one left on the Court, the Senate would have to approve somebody, as a matter of good faith, to follow the Constitution’s clear order that “The judicial Power of the United States, shall be vested in one supreme Court”. (If the Justice turned out to be a bum, the Senate could…use another power it has re the Court, and impeach him or her for a refusal to show “good Behavior”, U.S. Const. art. III, § 1. So there’s no excuse for not appointing at least one Justice to the Court, on the pretext that the Justice may not be “perfect”. Who’s perfect?)

     But according to “The Federalist” article supra, the Senate could just let the Court die off. This doesn’t seem very patriotic, among other things. ...Incidentally, speaking of “Federalist”, is there anything in the actual Federalist Papers, written largely by that guy with the Broadway musical named after him, that would support the Senate kung-fu-ing the Supreme Court to death?

III. Al Hamilton: Probably Not for H-Bombing the Court

     Let’s see, first off, The Federalist No. 76, quoted in What Did the Federalist Papers Say About Supreme Court Appointments?:
The person ultimately appointed must be the object of his [the President’s] preference, though perhaps not in the first degree. It is also not very probable that his nomination would often be overruled. The Senate could not be tempted, by the preference they might feel to another, to reject the one proposed[.]
, id., and The Federalist No. 78,
[F]rom the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.
Id. So the Fed Paps say in #76 that the Senate should generally defer to the President’s nominations, and in #78 that we should be wary of other branches’ attempts to “overpower[ ]”, id., the Court. But isn’t destroying the Court the ultimate form of “overpowering” the Court? What would Hamilton say?

     Cf. also Shun a President’s Supreme Court Nominee? Alexander Hamilton Would Not Be Pleased (making similar points, and including snappy photo of Lin-Manuel Miranda). In all, someone publishing in a venue called “The Federalist” might want to consult the actual Federalist Papers, to see if dropping an atom bomb on the Court is something that funky founding father Al H would’ve been down with.

IV. The Senate Can Pass Over Court Nominees—but Not Indefinitely or Indiscriminately

     The present author is somewhat neutral, by the way, as to the matter of appointing Merrick Garland to the Court or not; if Mitt Romney were President and wanted to appoint Ted Cruz to the Court, who thinks the Democrats would be enthusiastic to appoint him? And if Democrats are not enthused about Cruz, how can they blame Republican senators for not wanting to appoint one of Obama’s nominees? However, for any Senate to refuse even to consider any of a particular President’s nominees, smacks of obstruction. And for any Senate to try to kill off the Court, smacks of insanity.

V. Conclusion: We Pay the Senate to Restock the Court, so the Senate Should Do Its Job

     The present author doesn’t especially favor big government, but if we’re paying with our taxes for government, the government might as well do something. …If you wanted to argue that a branch of the federal government be killed off, you might want to start not with the Court, but with Congress (including the Senate), or the Presidency, whose inhabitants have to be elected by everyday Americans. (What if no one voted? No one would be elected, and the branches of government in question would tend to die off. And could average Americans really be forced against their will to vote for Congressional or Presidential candidates at all??)

     But the Court is appointed by the President, i.e., by someone who’s paid to do a job. (Your average voter is not paid for casting a ballot.) The President should do what she/he is paid to do.

     And the Senate too is paid to do a job, that is, considering Supreme Court nominees. For the Senate not to do that job, and let the Court die, is the kind of ineffective big government we really don’t need. (FDR and Phyllis Schlafly promoted big government by endorsing Court-packing, the needless expansion of the Court; but at the other extreme, to wipe out the Court when the Senate is being paid to do its job and restock the membership of the Court, is also ineffective big government.) And to waste time making spooky arguments that one branch of the Government can whack another at will, may be wackier than anything else you see this Halloween—especially when such arguments may not have a ghost of a chance of withstanding serious analysis.

(Cross-posted, with edits, at Casetext)

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