A Pause for the Clause...Good Faith

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In light of the death of Supreme Court Justice Scalia, it is important to reflect on his role as well as his contributions on both sides of the fence. On the surface we see a staunch republican whose views might be directed by his political beliefs; dig a little deeper and some of his positions on SC decisions might surprise you. More on that later. What is more important to understand is the implication of the circumstances which surround this conundrum of the vacant seat that now exists in the Supreme Court.

Known for his fiery descents, if ever there were a scenario that explains away the division in congress right now and for the past eight years at a minimum, this is yet another one. “take care that the laws be faithfully executed.”

Mitch McConnell, Jr, to delay a nomination would be a failure to your constitutional obligation on the grounds of the evidence you publicly pronounced: "The American people‎ should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.” (Facebook page Feb 12, 2016)

Chuck Grassley Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa),"has no plans to start up the confirmation process on his panel." accord to Politico.

"This president, above all others, has made no bones about his goal to use the courts to circumvent Congress and push through his own agenda," Grassley said. "It only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court Justice.”

The oath of office for congressional leaders includes the following: "I will well and faithfully discharge the duties of the office on which I am about to enter."  This would include maintaining the balance of Justices to the U.S. Supreme Court-- that number is currently nine; and unless modified by Congress, should remain at that number; it is not a personal choice but a congressional obligation.

Article I Sec. 2 of the U.S. Constitution states:

When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies. Would this attribute of the Constitution exempt SCJ, when the very same doctrine later states the responsibility of the Supreme Court itself.

Can one honestly state that Justice Scalia, were he obligated to make a decision on whether President Obama had a responsibility to appoint a new Justice, if  one were  prematurely removed, that Justice Scalia, would argue against a nomination rather than President Obama's (or any other president) legal obligation to submit a nomination for replacement.

Constitutional Interpretation
More importantly under Article II Sec. 2 of the Constitution it states that: "... 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."  There is neither precedence nor written law that states that the President should not at any time fill a vacancy of a Supreme Court seat. He in fact has an obligation to fill such a position immediately as the number of SCJ's is established by Congress under Article III Sec. I of the Constitution. Again nowhere in the Constitution does it state that there should be a delay in the nomination of a SCJ at any point in an administrations tenure.

As Politico reported "no Senate leader has ever asserted a right — and there is no precedent for a sitting president to hand over his power of high-court appointment at the request of any member of the legislative branch."

In an article from the Washington Post, Barnett states the following regarding the interpretation of the good faith clause:

He is executing the laws passed by Congress, which includes this discretion. If Congress doesn’t like this, it should change the law... He goes on to counter this statement, he once held by asserting in an example of a tenant who has a contractual fiduciary responsibility to their landlord based on a volume of business "... it would be bad faith for the tenant to refer the customer to the tenants other store for the purpose of avoiding the percentage lease¹.

This is a poor example of bad faith in the context of the good faith clause, as 1) POTUS is not pondering a decision so simple as a few revenue dollars in a lease agreement; as an authority on Constitutional law, he more than likely understands the gravity of this nomination 2) his contract comes with a moral obligation to a much wider audience i.e. citizens of the United States. And just as he has stated in the past that he could not show favoritism for people of his own race because he is representative of all citizens not solely his own ethnic group; it is a moral compass and obligation that goes beyond the dynamics of a 1 to 1 relationship-- such as that given in Barnett's example, a elementary oversight. Both the repercussions and expectations are exponentially more significant. Would you not say that a SCJ position influenced by his/er upbringing would render their decisions unfaithful? At which point do we then distinguish between experiential influence and moral obligation, and which persons are manipulated by those factors.

The Senate and House behavior in matters relative to advancing legislative action in the interest of the United States, borders on criminal.  Never should personal emotions be engaged or confused with the foundation of what the Constitution was built on-- morals and responsibilities.  For it is not possible to build a more perfect Union, without fully embracing its predecessor:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

As an originalist, the late Justice Scalia, would have encouraged a replacement, under a judicial obligation, were he around today to submit a decision.



1. Randy Barnett is the Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center, and Director of the Georgetown Center for the Constitution.