That Delicate Balance

By Professor Allan Ides

This op-ed originally appeared on The Huffington Post

The overall goal of our Constitution is to promote the general welfare of the people through a system of ordered liberty. Over the past two centuries, this constitutional structure has functioned reasonably well, though not without serious challenges, including a bloody civil war. It is a system designed for public-spirited problem solvers. And it seems clear that if the people’s representatives want to accomplish something, our constitutional system will allow them to do so. Of course, that will require thoughtfulness, negotiation, and compromise.

There is, however, nothing mystical or metaphysical about our Constitution. It is not perfect and no reorganization of it or amendment to it will ever make it so. When drafted and ratified it represented best ideas on governance that could survive the necessary political compromises of that day. Some of its imperfections have been repaired, such as the abolishment of slavery, but others remain, including our grossly malapportioned Senate. Its success and longevity is the product of the public servants who make it work.

But no system of government, no matter how finely tuned, no matter how perfectly designed, can survive folly and ignorance. Nor can it survive if one political party sees its primary role as being to inflict wounds on the other in the hope of some distant victory. Just as the creation of the Constitution was a product of wisdom, principled disagreement, and compromise, the functioning of the constitutional system requires the same. Thus the delicate balance of power and limits created by our Constitution depends on the good faith of the elected and appointed representatives of the people. A true patriot would ask, “How can we make this work?”

One of the key issues in this overheated election season involves the potential judicial nominations the respective candidates might make. It’s a fair topic, but regardless of whoever gets elected and whichever party controls the Senate, it seems unlikely that either presidential candidate will have carte blanche selection to the Court. One suspects, given the patterns of recent history, that any successful nominee will fall somewhere in the range between the center right and the center left, much like President Obama’s nominee Merrick Garland.

Recently, Senators McCain and Cruz signaled their willingness to prevent Hillary Clinton, should she be elected, from appointing anyone to fill the current vacancy on the Supreme Court. McCain has attempted to walk his statement back, but it seems that the prospect of a blockade of any and all Clinton nominees remains a lurking possibility. It should be clear that the motivation for doing this would have nothing to do with the type of Justice a Senator might prefer, for the refusal is a blanket one that applies regardless of the nominee’s qualifications or attractiveness as a judicial officer.

It is true, that there is nothing magic in the number nine. Congress is fully empowered to shrink or increase the size of the Supreme Court. But we are not talking about the optimal size of the Court. We are discussing a type of political warfare that has become commonplace over the past eight years. There is no question that a Republican majority in the Senate could block each and every judicial nominee made by a President Clinton, including any and all of her nominees to the Supreme Court. Nothing in the Constitution would prevent them from doing that. The power to advise and consent is not constrained by an enforceable obligation to act. It is, plain and simple, a political power vested in the Senate and whether or to what extent the Senate exercises that power is within the unreviewable discretion of the Senate. But the refusal to even consider the merits of a particular nominee can only be described as a rank abuse of that power. And the refusal to consider the merits of any nominee is an even more striking and offensive abuse.

The Constitution’s survivability depends on our confidence in it. It works and our confidence grows when our representatives pursue their offices in good faith with a goal of promoting the common good. Strong policy disagreements are to be welcomed. Compromise is to be considered. Success will be measured across party lines and over decades. But the Constitution will cease to function effectively when our representatives see their vested powers as a personal prerogative to stir the pot of political anxiety by creating a political battleground that only hasten us toward mutual assured destruction. We can only hope that McCain’s walk back represents the better angels of the Republican Party.