So When Already?…The Next U.S. Supreme Court Justice

Which side is right under the Constitution?

The President and his supporters currently insist that the present nominee for the U.S. Supreme Court must be afforded a prompt hearing before the Senate Judiciary Committee, and that an equally expeditious follow-on debate and majority vote by the Senate take place to determine whether that full august body will give consent or decline approval of the nomination.

Conversely, opponents of the nomination maintain, with equal vigor, that “the will of the American people must be served” and that so doing requires forbearing commencement of the “advice and consent” protocol by the Senate to await a new nomination by the next President of the United States.

The simple answer is that neither side likely enjoys a monopoly in claiming faithful adherence to the Constitution.

Article II, Section 2, Cl. 2, of the U.S. Constitution, in pertinent part says simply: “He [the President] shall have Power…by and with the Advice and Consent of the Senate…to appoint…Judges of the supreme court…”

The Constitution nowhere mandates any time frame for either undertaking, nor has the Supreme Court ever interposed an imputation as to a ‘reasonable time’ for such happenings by either the Executive or the Senate to assure comportment with this Article.

With reference to somehow satisfying “the will of the American people”, both sides may unknowingly be correct, even though for the wrongly enunciated reason.  

Article I, Section 3 originally mandated that “The Senate of the United States shall be …chosen by the Legislature [of each state]”.  As such, the two Senators representing each state were not selected by the voters of that state, and as such, the composition of the Senate could hardly have reflected the “will of the people”, but rather the result of political machinations by state legislators. However, this circumstance changed in 1913, when Amendment XVII was ratified, thereafter requiring that Senators indeed reflect the will of the American people by mandating their election by direct vote of the citizenry in each state.

History reveals that both Democratic and Republican controlled Senates have sought to advantage their constituency in the last year of a presidential term by delaying or preventing hearings and Senate voting, respectively, as to a Supreme Court nominee. This nation has, indeed, “seen this movie before”, except that there is always the same ending in each instance; namely ultimate compliance with Article II.

The genius of our Founding Fathers in creating intentional legal tension as amongst the Executive, Legislative , and Judicial branches by establishing these three co-equal branches of government, is reflected by this current transient brouhaha.

Undoubtedly, the acknowledged legal discomfiture and uncertainty resulting from ongoing Supreme Court tie vote ‘deadlocks’ will remain fodder for criticism. However, one may take comfort that there is hardly a threat to the continuum of the place in our Constitution enjoyed by the Supreme Court as a separate equal branch of our Republic’s underpinnings.

“This too shall pass”.

Irving Labovitz, J.D.

Irving Labovitz, J.D., is a graduate of the University of Massachusetts and holds a Juris Doctor from Boston University School of Law. He is admitted before the U.S. Supreme Court, as well as multiple federal appellate and trial courts. His experience includes: Federal Trade Commission legal staff in Washington, D.C., military federal prosecutor, Adjunct Professor of Business Law at Western New England Law School and FAU, attorney for major banks in concentrations of bankruptcy and secured lending, and contract counsel for the Federal Deposit Insurance Corporation in the liquidation of failed banks. He has authored many scholarly law review articles and has been a national lecturer for the American Bar Association and Commercial Law League of America. He is presently general counsel for a large corporation.

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