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.