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The Speech Sen. McConnell Should Give about Supreme Court Vacancies

In a Washington Post op-ed, Senate Majority Leader Mitch McConnell and Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) staked out an early position against President Obama nominating a Supreme Court Justice to fill the vacancy left by the death of Antonin Scalia, let alone the Senate confirming a new justice in this election year as Mr. Obama prepares to leave office. 

Up against the merits of their stance, the White House signals its intention to mount a media and pressure campaign to solidify Obama’s mark on the Court. A nomination is all but certain, and even the casual political observer foresees that it will be made with such a media campaign in mind, and much ugliness to follow.

There is a ready solution to this fight, solving it without retreat while also resolving another problem, that being President Obama’s hijacking of the shared treaty power and process as supposedly his alone. Both moves promise decades of detrimental precedent if mishandled. They need not be. 

Also, should Republicans consider a nominee—politics being what it is—the self-inflicted political wounds from doing so clumsily and in retreat could be severe.

Any modification of the Senate majority’s stance, if it occurs, should come quickly, before the ranks break, choosing the field on which to wage this contest. 

So let us consider a winning course adjustment in that eventuality. A Senate floor speech by the Majority Leader, seizing on the extant issues and Mr. Obama’s newly discerned solemnity about constitutional obligations under Article II, Section 2, could go something like this:

“Recently, President Obama has proclaimed a somewhat newfound dedication to Constitutional prerogatives. He has expressed particular fealty to Article II, Section 2. That provision of our Constitution creates shared powers for making treaties and filling high appointive offices, including Supreme Court vacancies. 

Those powers, reading Art. II, Sec. 2, in pertinent part are that:

The president…shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court

The President insists that prompt Senate execution of its role in the shared Executive-Senate hierarchy is a solemn duty. At least, regarding a potential nomination to the Supreme Court. Yet it is difficult to conceive that a president, particularly this one schooled in the Constitution, read Art. II, Sec. 2’s discussion of judicial appointments having skipped over the treaty-making power laid out immediately prior thereto. 

What he no doubt also saw is that the Constitution here implies a majority vote for judges, as is indeed our custom; it also expressly requires two-thirds Senate approval of treaties.

That is, the Constitution makes both functions shared functions, requiring advice and consent of the Senate. Both are serious undertakings to be collaboratively and deliberately performed. One of them—binding the United States in international commitments—is to be more difficult to attain even than filling a lifetime appointment to the High Court.

So, we arrive at this moment with relevant undertakings in the news: In December, the President claimed to agree to terms of an agreement that, by its development and by our history, by its level of detail and indeed the cost of its commitments, is plainly a treaty.

I of course refer to the Paris climate change agreement, already being ratified around the world by legislative bodies as the treaty it plainly is. Of course, these other nations do not share the United States’ obligations under Paris, but that is a separate point.

The President has also announced he plans to tell the world he is committing the United States, formally, to this treaty, on April 22, at a ceremony at the United Nations. At that ceremony, many nations will submit their instruments of ratification of Paris. But not the United States. President Obama and Secretary of State Kerry have insisted, since before there even was a Paris treaty, that whatever was agreed in Paris, well, we would not call it a treaty.

Secretary Kerry explained, in testimony to the House of Representatives, that in his mind treaties are no longer possible in the U.S. Notably, he said this two days before the Senate ratified a multilateral nuclear security treaty.

So, what Secretary Kerry was saying is that agreements for which the president is unable to obtain sufficient popular and political support are not possible to attain in the United States. Which indeed is what our system was designed to ensure, with its unique requirement of two-thirds support of the Senate.

Being unpopular doesn’t make a treaty not a treaty; and an agreement being unpopular is not reason to abandon our treaty process. To the contrary, it is reason to remember and follow our treaty process; to treat Art. II, Sec. 2 of the Constitution as solemnly as the President tells us he does.

We recall France’s recently retired Foreign Minister Laurent Fabius expressing his awareness that, were Paris considered a treaty in the U.S. it would fail, and therefore that the plan was to not pursue it as such. So Paris is not a treaty, we are told, even as the White House boasts that it is “the most ambitious climate pact, ever”, even more ambitious than the two climate treaties that came before it, in 1992 and 1997. And with countries now ratifying it as a treaty.

Have no doubt, Paris is a treaty. Following on President Obama’s recent vows of constitutional fidelity, we should note that nowhere does Art. II, or anything else in the Constitution, say that whether an agreement is a treaty is solely up to the President. That is, there is no support for President Obama’s position that the Senate’s shared role in the treaty-making process exists at his pleasure. 

The Senate, with its constitutionally provided, equal role in the treaty function can conclude that a treaty is indeed a treaty—this is a role the Constitution gives heightened importance to, with its supermajority requirement even greater than for the Senate’s undisputed role in approving Supreme Court justices.

The President would never purport to fill a lifetime seat on the Supreme Court, simply avoiding the Senate because the preferred nominee is obviously too radical to attain the approval of fifty one senators. The idea is of course on its face absurd.

We see no reason to accept, suddenly, the similar precedent of that approach on treaties, circumventing the Senate because the White House apparently thinks a pact is too radical to obtain approval of two-thirds of Senators. Indeed, with this requirement the Constitution makes plain that the Senate is to take its shared power in treaty making even more seriously than considering nominations to the Supreme Court.

It is important that the world know, when President Obama purports to commit the United States to the Paris climate treaty with a mere signature at the UN this April, when he deposits that signature along with other nations’ instruments of treaty ratification, that he is doing so pending Senate approval.

The United States does not commit itself to terms like those in the Paris treaty—which terms include promises of ever more money, and ever stricter “global warming” restrictions every five years—by ducking this constitutional provision the President recently assured us he holds sacrosanct. 

Two months after the administration claimed to have concluded the Paris treaty this past December, we saw the unfortunate death of Justice Scalia. This now brings us to the issue which prompted these recent presidential expressions of fealty to the Constitution’s original intent.  

We confront both the President’s reluctance to involve the Senate in one of its Art. II, Sec. 2 functions, and at the same time his claim that the Senate must promptly engage in a subsequent Art. II, Sec. 2 function that may soon arise.

As Senator Grassley and I explained, citing statements by Sen. Reid and other Democrats, Art. II, Sec. 2 does not say the Senate has a duty to give presidential nominees a vote, only that the President cannot appoint those nominees without a vote.

Nonetheless, I am willing to schedule a vote on a nomination to fill the vacancy on the Court, should one be made. But only after we consider the Paris climate treaty for the required advice and consent. This sequence of events presents the opportunity to solve the President’s desire—obtaining consideration of a lifetime appointment to the High Court—while enabling us to solve our problem—the President’s attempt to bind this country, future Congresses, administrations and even the courts to a climate treaty without following our process for making such treaty commitments.

So I am today making our offer to do so. We will consider these pursuits in the order of the importance they are given in the Constitution, as well as the order in which they arose.

The Paris agreement came first, and offers a more pressing deadline—President Obama insists that he will purport to commit the United States to Paris with a signature on April 22. With its requirement of two-thirds approval of the Senate, the Constitution elevates Senate approval of treaty commitments to a place of the highest importance.

The Senate will consider the President’s Art. II, Sec. 2 nomination to fill a Supreme Court vacancy soon after it considers the President’s Art. II, Sec. 2 Paris climate treaty.

Practice and protocol suggest that the Senate will wait until the president transmits the treaty, asking us to vote on it; just as practice suggests the Senate will wait for transmittal of a nomination before considering a potential Supreme Court Justice.

Nothing, however, says the Senate must vote on a Supreme Court nominee, or that it cannot vote on the Paris agreement now that it has been struck and the President prepares to assert he is committing the United States to its terms.

Regardless, under this arrangement I set forth today, we will await the President’s transmittal of the Paris treaty and, if he chooses to nominate a candidate to the Supreme Court, will proceed to consider that nomination after taking up the Paris climate treaty.

President Obama has spent considerable energy of late extolling the seriousness with which he holds Art. II, Sec. 2. The Constitution is not a buffet from which presidents can choose the provisions they agree to abide; in this case, the very same paragraph applies to both issues at hand. I wish to assure the President that we in the Senate take this as seriously as he assures us he does.

To solve this problem and indeed resolve both of these issues, we have informed the President the Senate will consider a Supreme Court nominee under Art. II, Sec. 2 soon after considering the Art. II Sec. 2 Paris climate treaty. The chamber awaits his participation.”

Such a move would solve two issues, one of the highest constitutional importance, and the other purely political (SCOTUS).

And what if Republican leaders hold to their position that the American people deserve the opportunity to inform the selection of Scalia’s successor by deciding in the November elections “who they trust to both lead the country and nominate the next Supreme Court justice”? They should simply incorporate the constitutional argument sketched above into their floor statements, op-eds, and other outreach efforts.

President Obama lectures the Senate about Art. II, Sec. 2 based on a double misreading. Art. II, Sec. 2 does not require the Senate to vote on judicial nominees, as Sens. McConnell and Grassley have already made clear. They should now explain what it does require: the submission of treaties to the Senate for its advice and consent.

The worst outcome of all, however, would be if Senate leaders abandon their position on judicial nominees without obtaining Obama’s commitment to first submit the Paris treaty for the Senate’s review. In that case, they would not only demoralize the Republican base in a presidential election year. Far worse, they would be complicit in eroding our constitutional system of checks and balances, agreeing only to perform those Art. II, Sec. 2 duties that the president says they may perform.​