New Poll Results Illuminate a Year That Goes Beyond “Interesting”

Goodness, those Donald Trump poll numbers – they do take my breath away. And the Hillary Clinton numbers do much the same.

The release Thursday of a new set of Marquette Law School Poll results brought a wave of interesting insights into public opinion in Wisconsin, as it always does.

But the degree to which Trump and Clinton are polarizing figures, the subject of both great support and great opposition, goes beyond the word “interesting.” It’s vivid history being made in front of our eyes, especially with each in good position to win nomination. A Clinton-Trump showdown for the presidency in the fall – it’s an amazing but somewhat likely prospect.

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The Senate Must Consider Supreme Court Nominations in Due Course

Ford-Potential-Nominees-to-CourtToday, the Senate Majority Leader, Mitch McConnell, announced the unprecedented decision that the United States Senate will refuse to consider any nominee put forward by President Obama during the remainder of his term in office to fill the current vacancy on the United States Supreme Court.  Senator McConnell said, “My decision is that I don’t think that we should have a hearing.  We should let the next president pick the Supreme Court justice.”

The refusal of the United States Senate to consider any nominee put forth by President Obama is a clear violation of the Appointments Clause of the United States Constitution.  Under the Appointments Clause (Article II, Section 2, Clause 2):

The President . . . 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, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law. . .

The role of the President is to appoint nominees to the United States Supreme Court.  The role of the Senate is to provide their “advice and consent” to the President on the specific nominee.

The meaning is “advice and consent” is clear and uncontroversial.  The Framers of the Constitution recognized that absolute monarchs such as the King of England had abused the power to appoint public officials.  This abuse was due to the monarch’s absolute power to appoint anyone they chose.  In response, the Constitution divided the power to appoint superior public officials and Supreme Court Justices between the Executive (the President) and the Senate.  The Framers of the Constitution diffused the appointment power, just as they diffused several other powers among separate branches of the federal government in order to guard against abuse.

However, the separation of the power to appoint into two pieces is not split 50-50 between the President and the Senate.  Rather, the split is made between the President’s absolute power to select any nominee he or she chooses, and the Senate’s power to accept or reject the nominee.  The intent of the Appointments Clause is to give the Senate a check on the President’s choice, in order to prevent nominations that result from corruption, cronyism, or the advancement of unqualified nominees (i.e., family members).  The Appointments Clause does not give the Senate any role in deciding who or when the President will nominate.

In fact, the Senate has no pre-nomination role at all in the appointment process.  The Senate’s only role under the Constitution arises after the President makes a nomination.  In this regard, it has often been remarked that the power of initiative lies with the President under the Appointments Clause.

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Justice Scalia at Marquette Law School

Judge Diane Sykes introduces Justice Antonin Scalia at the dedication of Eckstein Hall
Judge Sykes introduces Justice Scalia

It seems to be common ground that it will be hard to imagine the United States Supreme Court without the late Justice Antonin Scalia. He was a force also in legal education more directly. That is, he was a teacher, and he taught his theories of constitutional and statutory interpretation with intellect and energy, even outside of his writings in the U.S. Reports.

 

Justice Scalia visited us at Marquette University Law School on two occasions. The first was in 2001 to deliver our annual Hallows Lecture, where some 500 people were with him in the Weasler Auditorium, while a group of the same size watched a video feed in the Monaghan Ballroom of the Alumni Memorial Union. For me, the more memorable moment in that visit came when the Justice first arrived to campus, where an overflowing group of law students awaited him in Room 307 of Sensenbrenner Hall. The dean at the time, Howard B. Eisenberg, told the students that I would introduce him, because “Without Professor Kearney, there would be no Justice Scalia here.” Even before I could say anything, Justice Scalia brought the house down with this interjection: “I thought that, without Justice Scalia, there would be no Professor Kearney here.”

Justice Scalia returned to deliver the keynote address at the dedication of Eckstein Hall on September 8, 2010. He relaxed his strictures on recording, and the entire ceremony can be seen here, with an account of it appearing in the Marquette Law Review. I especially recall this comment of Judge Diane S. Sykes, L’84, in introducing the Justice:

“So we are fortunate, indeed, that this history-making justice has joined us here today as we make a little history of our own. When Dean Kearney unveiled the plans for this beautiful building two years ago, he famously declared that Eckstein Hall will be ‘noble, bold, harmonious, dramatic, confident, slightly willful, and, in a word, great.’ It certainly is. And with the possible exception of harmonious—Justice Scalia has been known to say that one of his charms is that he likes to tell people what they don’t want to hear—the dean’s description of this distinguished and splendid building might likewise be applied to our distinguished and splendid visitor. So, ladies and gentlemen, please join me in welcoming the noble, bold, dramatic, confident, slightly willful, and, and in a word, great Justice Antonin Scalia.”

There are things to learn from the remarks of Justice Scalia and the other speakers that day, including then-Chief Justice Shirley S. Abrahamson, whether in the recording or the law review account linked above. My own recollection of Justice Scalia has appeared in the Milwaukee Journal Sentinel and can be found here.

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