The Procedural Veil

Making sense of the SCOTUS controversy after the death of Antonia Scalia isn’t difficult. The Supreme Court, like any branch of government, has a tremendous amount of power, and Republicans and Democrats want to control that power. Supreme Court Judges aren’t mindless drones, but having someone who is ideologically on your side can’t hurt.

What’s amusing from an outside perspective is that the entire debate over Obama and the empty SCOTUS seat is framed around procedure. Consider these tweets from Federalist writer, Sean Davis.

He doesn’t justify Senate obstructionism on the grounds of ideology or merit, but on procedure. The Constitution says the Senate can do this, therefore it’s OK. And as a matter of procedure, he’s completely correct. Here’s the Appointment Clause in the Constitution:

[The President] shall nominate, and, by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The nominees of the president must be consented by the Senate. The Senate could delay a Supreme Court nomination until the end of time if they have the political will. But Sean Davis doesn’t give a damn about procedure. This tweet, made right after the news of Antonia Scalia’s death, exposes the rotten argument for all it’s worth.

Obama could nominate the revived body of John Marshall and Sean Davis would oppose him. If the judge doesn’t play for your team, then he/she shouldn’t be appointed. Some writers are honest about this, but most aren’t and we shouldn’t be fooled by this procedural veil. The debate about the SCOTUS nominations is about power and ideology, nothing more.

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