Is the Nomination of Amy Coney Barrett Unconstitutional?

On Oct. 10, Democratic presidential nominee Joe Biden claimed that nominating and potentially approving Amy Coney Barrett for the Supreme Court during election season was “not constitutional.”

You might think Biden knows what he’s talking about. Trained as a lawyer, he served a long tenure in the Senate and eight years as vice president. For eight years as well, he chaired the Senate Judiciary Committee, the Senate committee most involved in constitutional issues. During all this time, the Constitution was the source of Biden’s power and a rule book governing his job.

Keep in mind that the Constitution is not a particularly long document. It’s not too much to expect a member of the Senate, and especially of the Judiciary Committee, to be familiar with it.

On Oct. 15, Sen. Patrick Leahy (D-Vt.) called the Barrett nomination and approval process “illegitimate”—that is, illegal. Leahy is another lawyer who has been in the Senate for many years. He chaired the Judiciary Committee even longer than Biden.

Former Sen. Russ Feingold (D-Wis.), still another lawyer, was likewise a member of the Judiciary Committee. He apparently professes some constitutional expertise, for he now heads the American Constitution Society, an organization of liberal lawyers, professors, and law students. In circular emails Feingold has asserted repeatedly that the Barrett nomination and confirmation process is “illegitimate” and would “steal” a Supreme Court seat.

Buttressing the presumed credibility of these three lawyers is the code of ethics governing them: Lawyers are supposed to tell the truth.

But let’s test the statements of these three men against the Constitution itself.

The relevant sections of the document are simple and straightforward. Article II of the Constitution states: “[The president] … shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the Supreme Court.”

Consider this sentence for a moment: The Constitution grants many powers that officials are free to exercise or not, as they wish. But in this grant of power, exercise is mandatory. This sentence is in a grammatical form called the future imperative: “shall nominate” and “shall appoint.” The language is similar to the Constitution’s requirement that the president “shall take Care that the Laws be faithfully executed.” A president who systematically refused to enforce laws—or to nominate judges—during election season would be violating his constitutional duty.

This conclusion is underscored by another sentence in Article II: The president “shall hold his Office during the Term of four Years.” In the case of President Trump, that means from Jan. 20, 2017 until Jan. 20, 2021 (or until Jan. 20, 2025, if he is re-elected).

The fixed four-year term was a flat rejection of the system in countries where the executive stayed in office for life or until an event whose timing was not known in advance. For example, Great Britain divided executive power between the king, who served for life, and the ministry, which held power while it enjoyed a parliamentary majority.

One reason for the fixed-length term was precisely to ensure that the president remained reasonably independent of the legislature and of external events—even pending elections.

In sum, the president not only may nominate Supreme Court justices, but also must do so, irrespective of when vacancies arise.

Once the president has nominated a potential justice, the Senate has the job of “advice and consent.” This means it must give an answer—yes or no—to the nomination. (It does not necessarily mean it must hold hearings.) Like the president, Senators also serve for fixed terms (6 years), and a Senator may not ignore his or her obligation merely because an election campaign occurs during his or her period in office.

A federal law affirms that the president’s duty to nominate and the Senate’s duty to respond do not go away during election season. Title 28, Section 1 of the U.S. Code states that “The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices …” [emphasis added]

Presently the Court is in session with only seven associate justices. While the court may legally do this (its quorum is six), federal law contemplates eight associate justices. A president or Senator who refused to respond to a vacancy merely because an election is pending certainly would be violating the spirit of this statute.

Thus, the statements by Biden, Leahy, and Feingold are flatly incorrect. The current proceedings are neither “unconstitutional” nor “illegitimate” nor an attempt to “steal” anything. On the contrary, both the president and the Senate are carrying out their constitutional and legal duties. While many legal conclusions are arguable, this one really is not.

So why did these three supposedly qualified individuals make the statements they did?

Cornelius Tacitus—whose Latin-language writings are widely considered the best historical works produced by ancient Rome—once observed that governments both great and small are afflicted with two common problems. The first is ignorantia recti: ignorance of what is right. I suppose that Biden, Leahy, and/or Feingold might have made their statements out of honest ignorance. As I have pointed out elsewhere, some public officials display astonishing levels of ignorance.

Tacitus identified the other common defect as invidia. This Latin word usually means “envy,” but in this context it’s more accurately translated as “spite” or “ill-will.” A claim motivated by pure spite is not an honest one; it’s often an outright lie.

There’s a third common political problem that’s a blend of the two that Tacitus identified. You might call it willful ignorance. A person is willfully ignorant of important facts if he knows he’s ignorant but just doesn’t care enough to learn the truth.

The reader can decide for himself whether the Biden–Leahy–Feingold allegations flow from simple ignorance, spite, or willful ignorance.

This article first appeared in the October 20, 2020 Epoch Times.