Lawyers parse words. But sometimes, even supposedly smart lawyers misuse them. Senator Ted Cruz’s March 7 editorial in The Wall Street Journal has examples of both phenomena.
Distinctions Without a Difference
First, the parsing.
“Seldom has a Supreme Court vacancy arisen before the election in a presidential year,” Cruz writes. “Benjamin Cardozo, whom the Senate confirmed in February 1932, was the last justice confirmed to fill such a vacancy before the election.” He then notes that Republicans controlled both the Senate and the presidency.
The parsed phrase is “vacancy arisen before the election in a presidential year.” His citation to Cardozo as “the last justice confirmed to fill such a vacancy” is accurate. But only because it excludes lots of justices whom the Senate confirmed in a presidential election year, but who filled seats that had opened earlier.
The most recent example of a presidential year confirmation is Justice Anthony Kennedy. But Cruz’s parsing eliminates that comparison because Justice Kennedy filled the seat that Justice Lewis Powell vacated in June 1987. President Reagan’s unsuccessful nominations of Robert Bork and Douglas Ginsburg in 1987 pushed Kennedy into a presidential election year — 1988.
If the point is whether the Senate should act on a President’s Supreme Court nominations, Cruz’s proffered distinction is both disingenuous and meaningless. Incidentally, a Democratic-controlled Senate approved Kennedy’s nomination — 97 to 0.
Even apart from Justice Kennedy, the facts undermine Cruz’s core argument that history is on his side of this debate. The SCOTUS blog has a factual summary leading to this conclusion: “The historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election. In that period, there were several nominations and confirmations of Justices during presidential election years.”
Rewriting the Constitution
The other aspect of Senator Cruz’s op-ed is more troubling. As an honors graduate of Harvard Law School, he knows what the constitution actually says about the President’s obligations and the Senate’s responsibilities:
“[H]e 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….” (Article II, Section 2)
Senator Cruz reads the founding fathers’ command out of the document. He writes, “I believe the Senate should fulfill its constitutional duty by letting the American people be heard in selecting the next Supreme Court justice.”
The Senate has no such “constitutional duty.” The President has a duty to nominate and the Senate has a responsibility to act on that nomination. To be sure, it can vote up or down on the selection. Some states conduct popular elections for state court judges. But the “American people” don’t get to nominate or approve federal judicial appointments.
Let Your Imagination Run Wild
The irony of Senator Cruz’s argument would not be lost on Justice Scalia, who dedicated himself to originalism. Regardless of whether you agreed with him, Scalia urged an interpretation of the constitution that respected its text and meaning. Applying that philosophy, he strove for consistency in its application.
For the lawyers who appeared before the Court, Justice Scalia was also an active interrogator. Imagine the questions he might have posed to Senator Cruz:
“Show me where, in the constitution, it says the Senate has a duty to let the people select a Supreme Court justice?”
“You say the election year makes things different. Why? Where does the constitution say ‘delay, delay, delay’?”
“If I accept your argument about the election year exception — which is nowhere in the constitutional language — what’s the limiting principle? Once we move away from the command of the text — “the President shall nominate” — why not make the exception two years long? Or three?”
“Do you agree that the constitution gives the Senate a duty to act on the President’s Supreme Court nominations? If so, at what point does the Senate’s failure even to consider a nominee make it derelict in the performance of that duty?”
“In your Wall Street Journal piece, you say that the Senate should ‘not consider any Supreme Court nominee until the people have spoken and a new president is nominated.’ Please show me a single word in the United States constitution that supports your position.”
The silence in response to the last question would be deafening.
The Belly of the Beast 
A great piece. This SCOTUS thing has made all Republicans look like evil doers.
Man the torprdos, full speed ahead.
Perfectly said. Thank you!
Hey Steve-a-rino,
If we’re “parsing words,” it is disingenuous for YOU to claim that it was “President Reagan” who “pushed Kennedy into a presidential election year,” yes?
It wasn’t “President Reagan” who dragged things out for almost a year in the Senate, right? Reagan would have undoubtedly been tickled pink to have the Senate confirm Judge Bork on the INSTANT. But a left-wing Senate dragged out the process.
Far from being a “meaningless” “distinction” as you claim, the example basically strikes the head off of your argument that the Republicans’ position in this year is unprecedented. I realize you didn’t literally use the word “unprecedented,” but that’s basically what you mean, right?
While we are making up new constitutional provisions, Steve, just exactly how many days DOES the Constitution give the Senate to schedule an up-or-down vote on all court nominees? Hmm? 60 days? Or does the Constitution demand that the nominees be voted on within 30 days? Do I hear 15 days?
Good sir! I heartily welcome your newly-minted and UNDOUBTEDLY sincere embrace of a fierce new brand of originalism. But since you are channeling Justice Scalia of late, you should ask HIS shade the precise number of days that the Senate has to act on a nominee before the world ends.
Based on an originalist view of the Constitution, I am absolutely certain that Justice Scalia would conclude that the Constitution prescribes exactly 81 days, 21 hours, 4 minutes, and 32.15 seconds.
Do you agree?
In all seriousness, though, I’m actually quite sure that the real Justice Scalia would say that the conflict over judicial confirmations can ONLY be settled at the ballot box, or by the unilateral capitulation of either the Senate or the President.
Is there any serious doubt about that, folks? Or would Justice Scalia arbitrarily select a number of days in which the Senate MUST act?
How many days is the deadline in YOUR fantasy, Steve? I assume your preference (and the, ahem, Constitution’s preference) is less than 310 days. But we need you to be more specific than that.
Here’s what I wrote: “President Reagan’s unsuccessful nominations of Robert Bork and Douglas Ginsburg in 1987 pushed Kennedy into a presidential election year — 1988.” What, exactly, is “disingenuous” about that? Reagan nominated Ginsburg and Bork; the Senate performed its constitutional duty and rejected them; eventually, Reagan nominated a justice whom the Senate confirmed. In sharp contrast, the current Senate has announced its refusal to perform its constitutional duty. Period.
In fact, Senators Grassley and McConnell have declared pre-emptively that they will not allow the Senate even to entertain the nomination of President Obama’s choice — whoever it is. Indeed, they will refuse to meet with the nominee. According to the SCOTUS blog cited in my post, that action (or declaration of inaction) is novel: “The historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election. In that period, there were several nominations and confirmations of Justices during presidential election years.”
Senator Cruz could simply admit that his position is politically driven. But that becomes a more difficult argument to defend, so he tries to wrap himself in constitutional principles that do not exist. Anyone interested in fact-based analysis and reasoning should reject Cruz’s disingenuous suggestion that the framers intended “the People” to vote on any Supreme Court justice.
“‘President Reagan’s unsuccessful nominations of Robert Bork and Douglas Ginsburg in 1987 pushed Kennedy into a presidential election year — 1988.’ What, exactly, is ‘disingenuous’ about that?”
It’s disingenuous because it wasn’t Reagan who “pushed” the confirmation from 1987 – JUNE 1987, incidentally, when Lewis Powell retired – into 1988.
The Democrat-led Senate “pushed” it into the next year by playing games with Bork’s – and Ginsburg’s – nominations.
Period.
Full stop.
You didn’t answer your question, Steve-a-rino:
How many days does the “Constitution” give the Senate to act on a SCOTUS nomination? 35 days? 15 days? 100 days? I’m interested in pinning down this newly discovered form of “originalism” that you are advocating.
I wouldn’t want anyone to think you were ducking the question.
What’s the Constitution’s deadline, Steve? Will you begin your reply with an actual number, or will you hem, haw, and evade?
You quote my sentence without reading it. President Reagan’s nominations of Bork and Ginsburg were unsuccessful. I did not write that Reagan “pushed” the nominations into an election year. But the actual facts belie your suggestion that the Democratic-led Senate “played games” with the Ginsburg and Bork nominations in a way that somehow saves your argument.
Bork went through the hearing process and lost the final Senate vote 42 to 58. Two Democratic senators voted for him; six Republican senators voted against him.
As for Ginsburg, nine days after President Reagan announced his nomination, Ginsburg himself withdrew after the furor over admitted marijuana use as a professor. Senator Grassley — the same one who now heads the Judiciary Committee — was not pleased. According to the NY Times,”Senator Charles Grassley, Republican of Iowa, a member of the Senate Judiciary Committee, said ‘You like to think people who are appointed to the Supreme Court respect the law.’…Some conservative Republican senators, who had strongly pushed for Judge Ginsburg’s nomination, were said to be furious. ‘All of us wish he hadn’t done it,’ said Senator Jesse Helms of North Carolina.”
Meanwhile, you ignore the more important point: The Senate confirmed President Reagan’s third try — Kennedy — in an election year. For him, nomination to confirmation took 65 days.
As for the “Constitution’s deadline” — consider this: From the time of nomination, the Senate has never taken longer than 125 days to vote. The average time from nomination to confirmation, rejection, or withdrawal is 25 days. Even adding the time consumed by Bork’s failed nomination (114 days) to the time between Kennedy’s nomination and confirmation (65 days), totals 179 days. (Ginsburg withdrew nine days after his nomination and before any hearings.) The total elapsed time from Justice Powell’s departure to Justice Kennedy’s confirmation as his replacement was 237 days.
Take your pick. But the constitution provides no justification for the Senate’s purely political act of refusing — preemptively — even to consider President Obama’s selection.