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Coequal Branches of Government

U.S. Senator Chuck Grassley of Iowa is the Chairman, Senate Committee on the Judiciary.

The Constitution grants the authority to nominate and approve Supreme Court Justices to coequal branches of the federal government. The President has authority to nominate a candidate for the Supreme Court, and the Senate has the authority to consent or withhold consent.

However, in his post, President Obama six times states that he “appoints judges to the Supreme Court.” From that fundamental misunderstanding, he reveals that the person he will nominate, not appoint, will be someone whose decisions are not tied to the Constitution’s text.

Like most of his nominees, the President pays lip service to the notion that judges are to “interpret the law, not make the law,” but then submits that in cases where “the law is not clear” his nominee’s views “necessarily will be shaped by his or her own perspective, ethics, and judgment.” And of course, his nominee will “arriv[e] at just decisions and fair outcomes” based on the application of “life experience” to the “rapidly changing times.”

The President, candidly to his credit, has unambiguously informed the American people that his nominee will apply his or her own ethics and perspectives in deciding cases. This goes to the heart of the matter and it is a question that confronts the American people during this presidential election.

Justice Scalia, whose death created the current vacancy, crystallized the proper alternative understanding of the role of a Justice as adhering to the rule of law, which he famously defined as a law of rules. He understood that a Justice lacking a commitment to the rule of law would always be tempted to find congruence between the direction in which times were “rapidly changing” and his or her own policy preferences.

Under our Constitution, the people through their elected representatives are entitled to make the laws under which they live, subject to the rules set forth in the Constitution. The legitimacy of the Supreme Court’s enforcing the Constitution rather than popularly enacted laws turns on the impartial, rules-based, and textual meaning of the Constitution.

A Justice is no more entitled to force any other American to adhere to his or her own moral views or life experiences, untethered to law, through a false claim that the Constitution requires such obedience, than is an ordinary American. Imposition of such personal biases in the guise of law would subject citizens to decrees from on high they cannot change except through constitutional amendment made by officials they cannot vote out of office. That is not the constitutional republic the Framers created.

The American people deserve the opportunity during this election year to weigh in on whether the next Justice should apply the text and original meaning of the Constitution, or, alternatively, his or her own life experiences to changing times to advance his or her own sense of what would be “just decisions and fair outcomes.”

Senate Republicans will ensure the American people are not denied this unique and historic opportunity.

Recommended Citation: SCOTUSblog Grassley, Coequal Branches of Government, SCOTUSblog (Mar. 1, 2016, 7:00 AM),