About 10 years ago, I was honored to have dinner with Associate Justice Antonin Scalia when I was teaching at Ave Maria School of Law in Ann Arbor, Michigan. He visited our campus and gave lectures in constitutional law.
What I remember of the dinner conversation was more of an impression of the man than the substance of what we discussed. I recall him as a person of obvious intellectual ability, charming wit and a sense of the gravity of his office. He was devoted to the rule of law because he understood the consequences for a democracy when the rule of law is not honored.
As James Madison wrote, “The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse.” The rule of law is our bulwark against the abuse of power. It was Scalia’s understanding of this that led him to his well-known commitment to originalism, the doctrine that holds the court to read and interpret the meaning of the words of the Constitution as they were written by the Framers and given the force of law by the people of the states acting through their elected representatives.
The loss of Scalia leaves the nation on the brink of a constitutional controversy. Before the ink was dry on Scalia’s obituary, reports emerged that the Republican-dominated Senate would not approve any candidate advanced by President Barack Obama. The specter of a long vacancy and a deadlocked bench is a growing reality.
This, however, is not a constitutional crisis, as some pundits were quick to label it. There is no crisis here because the Constitution provides a plan. Article 2, Section 2 of the Constitution gives the president the authority and the duty to nominate the justices of the Supreme Court subject to the advice and consent of the Senate. The duties of the governmental offices are clear. The president must use his judgment to select a candidate he believes is worthy of the Supreme Court. He has already asserted his willingness to do so. The Senate is called upon to review the qualifications and abilities of that nominee and render a judgment. This is the political process that the Constitution describes.
So there is no crisis. But it is a tense moment because the political process is on particularly clear display. It is a time when the political branches are called upon to do the important work of politicians in a democratic society: to achieve a functioning government through compromise, wise judgment and effective debate.
It comes at a moment in the election cycle when many Americans are expressing frustration that the Washington establishment fails to govern in the best interests of the nation. The primaries in both parties show that many in the electorate are seeking new faces precisely because the established politicians are perceived as ineffective in the difficult work of governing. Disgruntled voters are seeking fresh voices who will stand up on principled judgment and lead, even when their ideas are unpopular, because they are willing to fight for ideas that are right.
Effective politics requires the courage of strong convictions. It demands that our democratically elected senators take on the leadership roles required of them. The Constitution makes clear what they are called on to do. And they must do it, even if the consequences of their reasoned judgments make them unpopular with some of their constituencies.
The senators must do what is mandated by the Constitution and face the wrath or praise of the populace for their judgment. Too often Washington politicians avoid making decisions when they calculate that this is the best way to ensure their continued office. But the goal of democratic politics is not the maintenance of the political classes. It is to do the work of the people. We need a Senate that is willing to take on the responsibilities of governing.
Kevin P. Lee is an associate professor in the Campbell University Norman A. Wiggins School of Law. The views expressed are his own.