Ted Cruz’s Commitment to Original Intent Will Be Tested Tonight

The death of Justice Antonin Scalia will shape tonight’s GOP debate and will, of course, shape the rest of this presidential campaign. That almost goes without saying.  I fully expect that tonight in Greenville, South Carolina the debaters will use Scalia’s death to stress the importance of this election.  Yes–all three branches of government are now “up for grabs” in November.

Ted Cruz has already weighed in on Twitter:

Here is what Senate Majority Leader Mitch McConnell had to say: “The American people‎ should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.”

I am trying to be objective as possible here.  I have my views about what I would like to see in the next Supreme Court justice, but I am not going to go there in this post.  I am curious, however, about the proper procedure for nominating Supreme Court justices.

According to Article 2 of the Constitution, the President of the United States is responsible for the appointment of Supreme Court justices.  If I understand the original intent of the Constitution, this is to be done by a sitting president, not a future president.  Unless I am missing something, Barack Obama is the sitting president of the United States.  He still has about 25% of his term left.

So I guess I don’t understand the argument that Cruz and McConnell are making.  The framers of the Constitution did not say that the people have a direct role in choosing Supreme Court justices.  They have an indirect role.  In other words, the people elect the POTUS (well, technically the Electoral College does, but we won’t go down that road right now) and the POTUS picks the justices.  In 2012, the American people chose Barack Obama as POTUS.

I don’t see how someone like Cruz–a defender of “original intent”–can see this any other way.  Unless, of course, Cruz and McConnell think it is OK for politics to trump original intent.

What am I missing?

Antonin Scalia R.I.P.

2 thoughts on “Ted Cruz’s Commitment to Original Intent Will Be Tested Tonight

  1. Mr. Estrada had no experience on the bench. He wasn’t a legal scholar. He had little public record from which to judge his fitness to be a judge. His reputation wasn’t much known outside of conservative circles.

    That is unlikely to be true for the President’s Supreme Court nominee.

    Interestingly, he’s a friend since law school of Supreme Court Justice Elena Kagan. She had also been nominated to the United States Court of Appeals for the D.C. Circuit two years before Mr. Estrada. Unlike him, she had been a legal scholar. Republicans kept her off the bench.


  2. What am I missing?

    Nothing really. Obama can nominate, the GOP senate can vote them down, or fail to bring it to a vote.

    After Democrats blocked the nomination of Miguel Estrada for two years [and Estrada had the votes]


    and then Harry Reid unilaterally changed the Senate rules on filibustering nominations when the Democrats gained power


    the Democrats relinquished the constitutional high ground long ago. This is the “new normal,” one of their own creation.


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