Supreme Court

Brett Kavanaugh Is Not Going Anywhere. Thanks, Obama.

He’s not the primary culprit for the disaster of Kavanaugh’s confirmation process, but he deserves part of the blame.
by Kim Wehle
September 23, 2019
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The bad taste left in millions of mouths over the confirmation of Justice Brett Kavanaugh to the U.S. Supreme Court is not going away anytime soon—as expected. As I’ve explained before, setting aside people’s concerns with Kavanaugh personally, the episode aggravated a deeper cancer on American democracy, which grew from the unfair and truncated way in which Senate Republicans gamed the process. 

The latest kerfuffle is over new allegations regarding Kavanaugh’s behavior toward women in college. Democratic nominees for president have called for his impeachment, and Republicans are crying foul about the thin sourcing and the media’s handling of the new information. This is all beside the point, as Kavanaugh is not going anywhere. The time for saying “no” to his seat on the Supreme Court has come and gone.

So far, there’s one prominent player who has dodged finger-pointing over Kavanaugh: Barack Obama. But he deserves blame too, for failing to stand up for the rule of law and the Constitution when Senate Majority Leader Mitch McConnell unduly blocked his nominee, D.C. Circuit judge Merrick Garland, and the rest of the Republican caucus shamefully joined the snubbing.

Article II of the Constitution states that the president “shall nominate, and by and with the advice and consent of the Senate, shall appoint . . . judges of the Supreme Court.” The key word here is shall. It does not equivocate or hedge. It’s mandatory. The appointment prerogative is the president’s—not the Senate majority leader’s. Unlike the presidency, that job isn’t even mentioned in the Constitution.

The clause does not define “advice” or “consent,” either. The Senate parliamentary rules are largely ad hoc. Since the Civil War, presidential nominees have been referred to the Senate Judiciary Committee, which conducts an investigation that includes a background questionnaire, financial disclosures, and meetings with Senators. The Judiciary Committee then holds hearings and ultimately votes on whether to recommend the nominee to the full Senate, which holds its own hearings and votes—usually to confirm. 

For Garland, no proceedings of any kind were held. McConnell argued that “[i]t is a president’s constitutional right to nominate a Supreme Court justice, and it is the Senate’s constitutional right to act as a check on the president and withhold its consent.” In a later speech, McConnell crowed: “One of my proudest moments was when I looked Barack Obama in the eye and I said, ‘Mr. President, you will not fill the Supreme Court vacancy.’”

The Constitution does not address whether the Senate majority leader has the power and discretion to altogether refuse to trigger the advice and consent process if the president hails from a competing political party. Not only does the Constitution not recognize the Senate majority leader as having a say in how the advice and consent process operates, it doesn’t recognize political parties, either. What the Constitution does make clear is that the people are supposed to self-govern through their elected representatives. If those representatives abdicate their constitutional role in order to gain a political advantage for themselves, the people’s voices are silenced.

For these reasons, McConnell was probably wrong on the constitutional law. And he’s already said that he would fill any vacancy that arises on the Supreme Court before the 2020 election, thereby imposing one set of rules for Obama, and another for Trump. The Constitution is not so fickle and unfair.

But—and this is a big but—Obama did not protest. The “no drama” president didn’t back up his nominee, he didn’t back up the office of the presidency he inhabited, he didn’t back up the voters he was elected to represent, and he didn’t back up the Constitution. Unlike McConnell, he did not even muster the courage to make a speech about the outrage on the office of the presidency itself. A lone voter filed a lawsuit aimed at getting McConnell to budge, but it was thrown out on the rationale that ordinary voters are the wrong plaintiffs to bring such a case.

With Obama’s political backing, a “right” plaintiff might have been Judge Garland—or Obama himself. The former constitutional law professor needed only consult the famous case that established the right of federal judges to review the constitutionality of actions taken by the other branches of government in the first place: Marbury v. Madison

When Thomas Jefferson defeated John Adams in the 1800 election, Congress passed a statute giving President Adams additional power to appoint lower court judges. William Marbury was one of them. But once Jefferson took office, his new secretary of state, James Madison, refused to deliver the actual piece of parchment that sealed Madison’s commission, effectively frustrating his appointment completely. Marbury sued, asking for a rare form of relief called a “writ of mandamus,” which is a court order directing a government authority to do an act it is obliged to do under the law.

(Bingo.)

Writing for the Supreme Court, Chief Justice Marshall held that President Adams had already made the political decision to appoint Marbury, and that Madison’s delivery was only ministerial. Madison was thus bound to execute that task. Ultimately, the court declared the statute itself unconstitutional, so Marbury didn’t get the job. But the salient point is this: Marbury’s team didn’t cave in the face of political gamesmanship and intransigence. He fought it all the way to the Supreme Court.

It’s hard not to wonder whether, had the shoes been on the other feet, a Republican president—with the backing of his party—would have gone to the mat to tamp down a Democratic Senate majority leader’s attempt to squash his Article II power to appoint Supreme Court justices. Barring a lawsuit, one might imagine a polite presidential memorandum to the Senate with a 14-day window for members to respond with a “yay” or “nay.” Had Obama done this, he would have effectively given Senate Democrats a way of getting around McConnell’s lock on Senate procedure while complying with the plain language—if not the historical implementation—of the advice and consent requirement in Article II. 

If Garland had been approved by the Senate, it likely would have been Neil Gorsuch who was nominated to replace Anthony Kennedy. And Kennedy’s retirement wouldn’t have meant that an evenly divided court would yield to a conservative court. Even if Garland hadn’t been approved but had at least gotten a fair hearing, the Democrats would have had less anger and potentially more buy-in regarding whomever Trump had picked to replace Kennedy. 

The power of a Supreme Court justice cannot be overstated, as McConnell knows. It takes two-thirds of both houses of Congress and ratification by three-quarters of the states to amend the Constitution democratically, but only five justices to do it in a Supreme Court decision. They are not elected, so they cannot be removed by voters choosing someone else, they serve for life, and they cannot be tossed out of office at the polls. But when Gorsuch—and now Kavanaugh—adds a fifth vote to a majority opinion on a constitutional issue, they do what the American populace logistically cannot: change the rules of government by “We the People.” 

Obama of all people should have realized the implications of McConnell’s Machiavellian outmaneuvering of his Article II power. The president could have fought back. He chose not to.

Kim Wehle

Kim Wehle is a contributor to The Bulwark. She is also a professor at the University of Baltimore School of Law and a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation and author of How to Read the Constitution and Why (Harper Collins).