The Constitution Allows It

Well, let’s get one thing out of the way first: the Constitution is completely silent on all this. It’s the president’s job to nominate and the Senate’s to provide “advice and consent,” but there’s no further textual explication.

During the battle over the current vacancy, some senators have said they’ve fulfilled their duty by giving President Obama the advice that they simply won’t confirm anyone. (Also, why hold farcical hearings that would be even more Kabuki theatre than what we’ve come to expect?) The voters seem to have evaluated this position and found it acceptable, although of course the GOP may lose its Senate majority for other reasons.

Similarly, if a majority of senators refused to confirm anyone to any offices, or pass anylegislation whatsoever, that’s their prerogative. As a matter of constitutional law, the Senate is fully within its powers to let the Supreme Court die out, literally. I’m not sure such a position is politically tenable—barring some extraordinary circumstance like overwhelming public opinion against the legitimacy of the sitting president—but it’s definitely constitutional.

But that’s not what McCain meant. He’s not a lawyer and indeed walked back his comments, saying through a spokeswoman that while “Hillary Clinton has a clear record of supporting liberal judicial nominees,” he would “thoroughly examine the record of any Supreme Court nominee … and vote for or against that individual based on their qualifications as he has done throughout his career.” Reading between the lines, he expects to reject Clinton’s nominees because they’re too progressive, but he’ll certainly make sure of that fact before voting that way.

Utah Sen. Mike Lee said much the same thing at a debate earlier this month. He explained there’s no difference between a so‐​called “moderate” like current Scalia replacement nominee Merrick Garland and whomever else a President Clinton would pick. “Not a single Democratic nominee to the U.S. Supreme Court since [Byron White, nominated by President Kennedy in 1962] has voted independently,” he detailed, which is why he’s been skeptical of President Obama’s nominees.

People Elect Senators to Represent Them, Too

Indeed, Hillary Clinton herself said at the last presidential debate that the Supreme Court is meant to answer questions like “What kind of country are we going to be? What kind of opportunities will we provide for our citizens?” Well, gee, if those are the questions you ask, of course you’ll end up with super‐​legislators, presumably in ideological agreement with the president appointing them. If you want the judiciary determining public policy, of course you’d think that Supreme Court justices should “represent all of us.”

But that goes against the rule of law and the idea of a judge as neutral arbiter, doing his or her best to apply the law to the facts at issue. As Supreme Court Chief Justice John Roberts explained at his confirmation hearings, the little guy should win when the law favors him, and the big corporation should win when the law goes that way.

Clinton’s admission that her nominees would “be in the grand tradition of standing up to the powerful”—like some black‐​robed community organizers—is far more damning than her nonsensical positions on Heller (Second Amendment) or Citizens United (declining to punish producers of a movie criticizing Hillary Clinton).

Should senators rubber‐​stamp judicial nominees of that ilk, who care not about the law but rather hew to particular policies, out of a sense of tradition or deference to the executive? I simply can’t blame politicians who follow their convictions. If you truly believe that a particular nominee would wreak havoc on America, why not do everything you can to stop him?

I imagine this is what senators Obama and Clinton were doing when they voted to filibuster Judge Samuel Alito. While I think they were hopelessly misguided in their assessment of Justice Alito and his legal views, I don’t fault them for pursuing an agenda they believed in.

So when you get past the gotcha headlines, breathless reportage, and Inauguration Day, if Hillary Clinton is president it would be completely decent, honorable, and in keeping with the Senate’s constitutional duty to vote against essentially every judicial nominee she names.