By: Kurt Olson, Professor of Law, Massachusetts School of Law
Soon after Obama became America’s first black president, conservative talk show host Rush Limbaugh said he hoped Obama would fail. Mitch McConnell, then the Senate Minority Leader, embraced Limbaugh’s mindless sentiment, telling the National Journal, “The single most important thing we want to achieve is for President Obama to be a one-term president.” While the goal McConnell set for the Republican Party was not realized, Limbaugh’s was – in large part because republicans took control of the House of Representatives in 2010 and the Senate in 2014. So while Obama’s administration may be deemed a failure, much more could have been accomplished if the far-right wing of the republican party had not refused to seriously consider any significant pieces of legislation put forward by the President or his party.
The far-right has goaded mainstream republicans to obstruct the president’s agenda, and McConnell and his various counterparts in the House have complied to appease the Tea Party and save their jobs. This blatant obstructionism continues today with McConnell’s mind-boggling refusal to even consider any nominee the President puts forward to fill the Supreme Court seat vacated by the Antonin Scalia’s death. McConnell has acknowledged that the president has the right to appoint a nominee, but he and his Senate colleagues do not even intend to hold hearings as part of the Senate’s constitutionally mandated advice and consent process. McConnel
l thinks it’s their right to refuse.
Here’s why McConnell’s interpretation of the Constitution misses the mark and flies in the face of the Framer’s original intent which was consistently espoused by Justice Scalia. Article II of the Constitution sets forth the executive powers while Article I grants powers to congress. Specifically, section 2 of Article II states that the president “shall nominate . . . and . . . with the advice and consent of the Senate, shall appoint . . . judges of the Supreme Court.” If the Framers meant to empower the Senate to refuse to even hold hearings on a president’s nomination, they would have included that power in Article I, not Article II which sets forth presidential prerogatives. Advice and consent in Article II means what it says: the collegial body which once was the Senate is constitutionally mandated to advise the president and then to consent to elevate his nominee to the Supreme Court unless that nominee lacks qualifications like judicial temperament and appropriate legal training.
The policy implications of McConnell’s refusal are much more likely to adversely affect the lives of everyday Americans than any constitutional crisis. Just as congressional republican obstruction of President Obama’s agenda has delayed or terminated essential programs like rebuilding crumbling roads and bridges, improving elementary and other educational programs, and alleviating inner city poverty, McConnell’s attempt to delay the appointment of a new Supreme Court justice disables the Court from considering crucial questions for almost a year. The framers intended to create a template for government which would allow a representative form of democracy to work of the people, by the people, and for the people. This democracy we cannot have until Mitch McConnell and Congress does its job.