Article II of the Constitution provides that “[the President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court….”
The President will soon exercised his Constitutional power under Article II to nominate another Supreme Court Justice. Under our Constitution, the advice and consent process then begins.
To be sure, the Senate must look into the nominee’s competence and character. The Senate must also focus on whether the nominee sees the plain meaning of the Constitution as the Rule of Law for our Nation. Doing so just might restore institutional legitimacy to a Supreme Court that has, under previous appointees, ruled as an imperial judiciary.
Under the American Constitution, we the people gave the executive branch powers to carry out its role of executing the law. (e.g., the presidential war power). Likewise, we gave the legislative branch powers to carry out its public policy law-making function. (e.g., the tax and spending power).
The judicial power of the nation rests in the judiciary. Unlike the war power of the executive branch or the tax and spending power of the Congress, the people provided no power to the judiciary to help it carry out its role of resolving disputes fairly under the rule of law. Nonetheless, the people entrust the nation’s judiciary to independently resolve disputes arising under the Constitution and laws of the United States. This trust exists only so long as the people perceive the exercise of judicial power as legitimate. A court’s commitment to applying the rule of law, expressed by the plain meaning of the Constitution’s provisions, preserves this legitimacy.
Losing Institutional Legitimacy
Since the 1803 case of Marbury v Madison, it has been the province of the judiciary to say what the law means. Nothing in Marbury or its progeny, however, suggests a judge in the judicial branch should substitute his or her will for that of the more politically accountable branches.
When a Court steps beyond its limited duty of applying the plain meaning of a Constitutional provision, it undercuts the legitimacy of its own institution. And it threatens good governance under the rule of law. To test the provisions of a statute against the Constitution is one thing; judicially imposing a personally preferred political alternative policy is another.
Restoring Institutional Legitimacy
The Senate’s Constitutional role of advice and consent should focus on the extent to which the President’s nominee applies the plain meaning of our Constitution as the Rule of Law for the nation. Establishing that the nominee does so helps to restore institutional integrity, allowing honest people to once again perceive the exercise of judicial power as legitimate.