Republican rhetoric over the appointment of a new justice to the Supreme Court to replace Antonin Scalia is not only transparently partisan, it’s historically baseless.
In rejecting President Obama’s efforts to name a candidate, Senate Majority Leader Mitch McConnell has repeatedly said, “Let the American people decide.” Meanwhile, Senator Pat Roberts of Kansas bizarrely declared, “You gotta go back to Jim Madison, when the Founding Fathers sat around. It used to be 67, and now it’s down to 60,” to defeat a presumed filibuster.
The Republican Party has long proclaimed its devotion to founding principles and celebrated “originalism” as the only authentic way to interpret the Constitution. However, McConnell’s and Roberts’ assertions epitomize exactly the kind of historical “revisionism” that Republicans usually decry, not to mention a travesty of both the Founders’ intent and the Constitution’s explicit meaning.
The Constitution stipulates that the president, not “the people,” name new justices, and that the Senate approves them. The Founders never intended Supreme Court appointments to be a political popularity contest. Nor, Sen. Roberts should know, did James Madison advocate that a filibuster be applied to Supreme Court nominees, or any other nominees, for that matter. Filibusters did not even exist in Madison’s day.
The members of the First Congress who essentially created our national government, were not “originalists.” None of them thought the Constitution was untouchable and unalterable. If its text was so sacred, as Congressman Elbridge Gerry of Massachusetts put it, what was the point of permitting amendments at all? Rather, the Founders saw the Constitution as a flexible instrument that could be adapted to future needs as the country grew. As Madison, who saw the new government as a bold experiment, put it, “We are in a wilderness without a single footstep to guide us.”
A Supreme Court and a federal judiciary system were called for by the Constitution. But they were actually created by the First Federal Congress, which met from 1789 to 1791, first in New York and then in Philadelphia. Although debate over the powers of the federal judiciary was sometimes intense, members of the First Congress never contemplated the kind of political trench warfare that often surrounds Supreme Court appointments today. Indeed, they hoped and expected that the court would rise above politics.
The members of the First Congress certainly never imagined that politicians would use the court as a pawn in an ideologically-driven attempt to deny a president’s constitutionally prescribed right to nominate his choice for the court. Much of the debate in the First Congress concerning the federal judiciary, as well as other issues, emphasized the need to strengthen the power of the new presidency, not weaken it.
Significantly, the sharpest debate over the creation of the federal judiciary focused essentially on what we now call states’ rights. Southerners in particular worried that a strong judiciary might someday tamper with slavery. Senator Pierce Butler of South Carolina, for one, charged that the judiciary bill would be able to “destroy, to cut up at the root the state judiciaries, to annihilate their whose system of jurisprudence and finally swallow up every distinguishing mark of a distinct government.” But the bill passed overwhelmingly.
The Supreme Court’s beginnings were modest. Its first meeting took place on February 2, 1790, in New York City. Symbolically, the moment was pregnant with promise for the republic—this birth of a new national institution whose future power, admittedly, still existed only in the mind’s eye of a few farsighted Americans. Bewigged and swathed in their robes of office, Chief Justice John Jay and his three associate justices sat before a throng of spectators and waited for something to happen, but nothing did. They had no cases to consider. After a week of inactivity, they adjourned and went home.
It would take time for the Supreme Court and the rest of the federal court system to grow into the third great pillar of American government. Its full impact would not be felt for generations to come. But combined with the rights that were being codified in the first amendments to the Constitution, it would one day become a great and dynamic engine that would carry justice into every community and transform American society to its roots.
Madison and his Federalist allies believed that a strong executive was imperative, and they feared the consequences if the Senate someday attempted to encroach on presidential power. They knew that one of the most crucial aspects of that strength was the power of appointment. During earlier debate over the establishment of the executive departments, Madison had argued that once Congress created an office and the president filled it, “the legislative power ceases.” Of course, the Senate has the right to reject a nominee. But Madison believed that a president dependent on the Senate to control his appointments would soon be left helpless. Unfortunately, this seems to be precisely what today’s Senate Republicans intend.