No sooner was Antonin Scalia dead than Republicans said that his seat should not be filled before the election of a new president. Senator Mitch McConnell said this will let the American people “have a voice” in who the new justice will be. Senator Kelly Ayotte said “Americans deserve an opportunity to weigh in” on the matter. And Senator Ted Cruz, the presidential candidate, Senate Judiciary Committee member, and self-styled guardian of the Constitution, wrote on Twitter, “We owe it to him, [Scalia] & the Nation, for the Senate to ensure that the next President names his replacement.” That is, we owe it to the archetypal originalist, where the Constitution is concerned, to ignore and defy the original Constitution.
One thing the framers of the Constitution set out to prevent was a popular say in who should be a Supreme Court justice. The aim of the document was to ensure there would be an independent judiciary—independent of Congress (by ensuring justices’ salaries), independent of changing administrations (by granting them life tenure), and not subject to popular election. This ideal could not be perfectly reached, and changes in the Constitution have made it even harder to attain. But those who profess an absolute devotion to the Constitution should at least pay it some lip service.
If the framers wanted to let the people “have a say” and “weigh in,” they would have made the appointment or confirmation of the justices come from the one directly democratic part of the system—the popularly-elected and short-termed members of the House of Representatives, a body that was designed to read the pulse of the people in a direct and frequent way. Instead, they gave the choice of justices a double baffle of insulation from the public. The president alone has the appointment power—and remember that the president was originally not elected directly by the people but indirectly through electors. Then a second filter was provided by confirmation in the Senate—and the Senate was originally not directly elected but indirectly by state legislatures. The Senate was meant to be a more stable body than the House, its members serving terms that are three times as long and only a third of them up for reelection at a time—not the whole body, as in the House. The Senate was meant to assure other nations that treaties (confirmed by the Senate) and other commitments would be honored for more than a day.
Of course, Senators became popularly elected in 1913, by the Seventeenth Amendment. But originalists should at least remember that senators were given their confirmation power because they were not subject to continuing popular approval. An extra fillip of irony is provided now, since some of the conservatives who want to let the people “have a say” in who becomes a justice—including Ted Cruz!—have recently called for revocation of the Seventeenth Amendment, so the people would not have a say in who becomes a senator.
So far, then, we have seen that the aim of keeping the judiciary independent was put in the Constitution by these moves:
1. Appointment by a non-directly elected president.
2. Confirmation by an (originally) non-directly elected Senate, only a third of whose members are removable at any election.
3. The elimination of any influence by the directly-elected House, which was constantly removable.
What more can be done to promote independence in the Judiciary? Alexander Hamilton reminds us of this in Federalist Nos. 78 and 79:
4. Give “permanent tenure of judicial offices” to guarantee “independent spirit in the judges” (No. 78).
5. Give them “a fixed provision for their support” (No. 79), by guaranteeing each justice “a compensation which shall not be diminished during their continuance in office.”
These ideas were enshrined in Article III of the Constitution, which states:
The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.
Which brings us to one more point:
- 6. Since life tenure is “during good behavior,” high crimes and misdemeanors must not go unpunished even by judges. But the House, attuned to new developments, can only challenge (impeach) a justice, and the (original) non-directly elected Senate must try him.
As I say, nothing can entirely remove the Court from popular influence. Mr. Dooley, the character created by the humorist Finley Peter Dunne, said it in 1901: “th’ Supreme Coort follows th’election returns.” But what more could the framers have done to make it clear that they wanted a judiciary that was independent of letting people “have a say” or “weigh in,” as our Republican “originalists” are now demanding? It is true that the nation has changed its ethos since the time of the Constitution—become more democratic, more egalitarian, more sensitive to human rights. But Antonin Scalia devoted his life to denying this history, to calling us back to the strait jacket of eighteenth-century values. What could be more absurd than for a cultist of Scalia like Senator Cruz to call for a popular referendum on Supreme Court justices?