When Original Intent Isn’t So Original: The Senate “Thurmond Rule”

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Senator Strom Thurmond / Creative Commons


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By Sean Pevsner, J.D.
Brewminate Legal Analyst

The preamble to the United States Constitution states:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

With this, the founders’ original intent was to make this document the supreme law of the land in the United States of America on June 21, 1788.   They expected that future generations might need to develop the constitution.  They established the Judicial Branch in Article III to assist future interpretation of it.  As discussed below, they empowered the other two branches of the federal government, the Legislative and Executive, to shape the Judicial branch.

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Jonathan Thorne / Creative Commons

The founders did not know exactly what role that the United States Supreme Court would assume in interpreting the constitution.[1]  The Court’s first justices had to chart a course to follow in interpretation since the Founders did not provide any specific guidelines for the role of the Court in the newly formed American government.  Chief Justice John Marshall gave a strong foundation to this role with the Marbury vs Madison case in 1803, which established that the Court had the power of judicial review under the Constitution over the federal and state governments.[2]  In McCulloch vs Maryland in 1819, Marshall established the supremacy of the federal government over state governments. Marshall famously wrote that we must not forget that “it is a constitution that we are expounding.”[3]  The Marbury and McCulloch cases are two of the most guiding principles for the Court.  However, different justices approach these principles with alternative judicial philosophies.

Some Court Justices, such as Antonin Scalia, strongly believed that the Court should only interpret the Constitution by looking at the original of intent of the founders.[4]  This approach means that Justices only apply the Constitution as it was intended at its inception in 1788 and when the post-Civil War Amendments were ratified – Thirteenth in 1865, Fourteenth in 1868 and Fifteenth in 1870.[5] By taking this strict construction approach, Justice Scalia rejected the notion that the Court should interpret the constitution in different ways to conform with changing times or prevailing principles of society as the living constitution approach allows.  In Scalia’s view, if the American people want to change the constitution, they should do so by going through the amendment process.  Otherwise, the Court and, indeed, the other two branches of the federal government, should strictly follow original intent of the constitution.

In contrast to the original intent judicial philosophy, the living constitution approach is the philosophy that justices should consider the constitutional history, changes in social customs and beliefs when deciding constitutional issues instead of only looking at original intent.[6]  Chief Justice Earl Warren and Justice Thurgood Marshall (discussed further below) were among those who used this approach.  It gives Court justices more flexibility to interpret the Constitution to fit modern times.  Most Democrats, such as President Obama – a constitutional scholar himself, strongly favor this method of constitutional interpretation.

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Late Supreme Court Justice Antonin Scalia / AP Photo

The recent death of Justice Scalia has sparked much debate over the constitutional duties of the president of the united states and the United States Senate in the appointment process of a justice to the Court.  The Republican Party has a majority in the Senate and the president is a Democrat.  Upon hearing the news of Justice Scalia’s death, Senate Majority Leader Mitch McConnell of Kentucky immediately announced that President Obama should let the next President appoint the successor to Scalia.  McConnell explained that since it was a presidential election, the American people should have a say in who becomes the next associate justice on the Court by electing the next President.[7]  McConnell further announced that the Senate would not consider any nominee that Obama presents to the Senate.[8]

By announcing this course of action, McConnell essentially invoked the unofficial Thurmond Rule.  As discussed below, this nonbinding “rule” was proposed by Republican Senator Strom Thurmond of South Carolina.  The Chairman of the Senate Judiciary Committee, Senator Chuck Grassley of Iowa, as well as the top Republican Presidential Candidates, Donald Trump and Senator Ted Cruz of Texas, agreed with McConnell.[9]  However, none of them cited any provision in the constitution which gives the Senate authority to refuse to fulfill its duty in the appointment process in the very same document.  Their main reason is to prevent President Obama from appointing a third liberal justice who would use the living constitution approach on the Court.  The President appointed Sonia Sotomayor to replace David Souter in 2009 and Elena Kagan to replace John Paul Stevens in 2010.

Obama responded to McConnell’s announcement by saying that, as the president, he had the constitutional duty to appoint the next associate justice to the Supreme Court.  President Obama informed Sen. McConnell and Sen. Grassley that he would submit his Court nomination to the Senate for its consideration.[10]

Most Republicans, like the aforementioned senators, strongly subscribe to the original intent approach championed by Justice Scalia.  However, they betray this principle by invoking an unofficial rule as a basis for refusing to do their duty under the Constitution.  The original intent of the Thurmond Rule betrays the meaning and spirit of the constitution as well.

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Article II, Constitution / Creative Commons

What the Constitution Says

Article II, Section 2 of the constitution states that the president “…with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court.”  This clause gives the president wide latitude to nominate someone who, in the president’s opinion, is qualified to serve on the Court.  It does not have a certain set of qualifications for Court appointments, other than the requirement that Justices “shall hold their Offices during good Behaviour.”  See Article III, Section 1.  The constitution provides a check on the president’s power to appoint justices to the Court by empowering the Senate to confirm or deny the appointment through the Advice and Consent clause.  The Senate can and has established formal rules and procedures to fulfill its constitutional duty.[11]  Nowhere in these formal Senate rules is a legal authority permitting the Senate to refuse to fulfill its constitutional duty.

The Senate Judiciary Committee

The Senate has a Judiciary Committee, established on December 10, 1816.[12]  The committee actually began in 1789 with the convening of eight Senators to create the Judiciary Act of 1789.[13]  Since the Constitution gave Congress the authority to create lower federal courts and control the jurisdiction of these courts as well as the Supreme Court, Congress passed and President Washington signed the act to give structure to the judicial branch of the federal government.  Over the years, Congress has amended the act.  However, it has retained the majority of its original provisions.  In 1911, former Supreme Court Justice Henry Brown declared that the act was “the most important and the most satisfactory act ever passed by Congress.”[14]  Most legal scholars and jurists agree with this assertion.  Thus, the first Judiciary Committee drafted one of the most important acts in United States history.[15]

In the Senate, the Committee eventually was charged with, among other things, deliberating and holding hearings on such issues as constitutional amendments, civil liberties, and US Supreme Court and lower court nominees.[16]  The Committee has twenty senators serving on it.  Currently, there are eleven members who are Republican and nine are Democrats.[17]  These senators are responsible for setting the agenda of the committee.

Judicial Confirmation Hearings

When the President submits nominations for the Court to the Senate, the Senate holds judicial confirmation hearings on the nominees.  These hearings allow committee members to ask the nominees questions regarding, among other things, their legal experience, judicial philosophy, and personal character.  The Committee may also hear testimony from witnesses both in support of and against a nominee.  To confirm a Court justice, the Senate must have a simple majority (51 votes) for a nominee.

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Justice Louis Brandeis / Wikimedia Commons

The first confirmation hearing occurred in 1916 with the Senate’s examination of Louis Brandeis.  The Senate heard testimony from witnesses supporting Brandeis’ nomination.  However, Brandeis did not testify at this hearing.  The committee decided to hold a hearing because Brandeis was perceived as a controversial nominee at the time.[18]  People such as William Howard Taft and six presidents of the American Bar Association opposed his nomination.  Publicly, opponents cited his progressive views as reasons for the Senate to reject his nomination.  There were others who objected to his nomination, because he was Jewish.[19]  The Senate eventually confirmed Brandeis by a vote of 47-22.  27 senators abstained from voting.[20]

The first Supreme Court nominee to testify at a confirmation hearing was Felix Frankfurter in 1939.  Frankfurter did not answer any questions.  He indicated that his public record spoke for itself.[21]  Like Brandeis, Frankfurter was Jewish.  Since Frankfurter was one of the founders of the American Civil Liberties Union (ACLU), some individuals attempted to link the ACLU to the Communist Party.  Frankfurter dismissed this allegations, and the Senate confirmed him on a voice vote.[22]

After the Frankfurter confirmation hearing, the committee began to regularly incorporate hearings into its confirmation procedures for Supreme Court nominees.  The more extensive confirmation hearings began with the nomination of Potter Stewart as Southern senators wanted to vent their frustrations with the Supreme Court’s decisions on civil rights and first amendment cases under Chief Justice Earl Warren.  Stewart was confirmed by the Senate 70-17.  All the Southern senators voted against him.[23]

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Judge Robert Bork in September 1987, at the Senate hearing on his nomination to the Supreme Court. / Creative Commons

In 1987, the Committee had the most contentious confirmation hearing when it considered President Reagan’s nomination of Robert Bork to the Court.  Several organizations such as the ACLU and the National Association for the Advancement for Colored People (NAACP) were strongly opposed to the Bork nomination as he was a very strict original intent judge on the US Court of Appeal for the DC Circuit.[24]  Bork did not believe that the constitution provided for the right to privacy or protected a woman’s right to terminate her pregnancy.[25]  Bork criticized the decisions on civil rights which the Court handed down under the Warren Court.  Even though Bork attempted to artfully explain his opposition to the Court’s cases providing the constitutional rights that the Court created in previous years, it was clear by his Senate testimony that he would have overturned many of those cases.  Indeed, his later publications and speeches proved this notion.

Bork suggested that the Court had to violate the original intent approach to rule that the segregation of the races was unconstitutional.  Bork believed that since society could not and would not provide truly equal schools and other public facilities to African-Americans, the Court had to rule that segregation was unconstitutional.  In his opinion, “…since equality and segregation were mutually inconsistent, though the ratifiers did not understand that, both could not be honored. When that is seen, it is obvious the Court must choose equality and prohibit state-imposed segregation. The purpose that brought the fourteenth amendment into being was equality before the law, and equality, not separation, was written into the law.”[26] This statement seems to suggest that if society did provide truly equal public facilities to African-Americans, Bork would uphold segregation as constitutional.

Democratic Senators such as Ted Kennedy vigorously opposed the Bork nomination.  Senator Kennedy made the following statement regarding Bork:

Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens.[27]

In response to these attacks, Bork made the following statement:

But a crucial principle is at stake. That principle is the way we select the men and women who guard the liberties of all the American people. That should not be done through public campaigns of distortion. If I withdraw now, that campaign would be seen as a success, and it would be mounted against future nominees. For the sake of the Federal judiciary and the American people, that must not happen. The deliberative process must be restored. In the days remaining, I ask only that voices be lowered, the facts respected and the deliberations conducted in a manner that will be fair to me and to the infinitely larger and more important cause of justice in America.[28]

Despite Bork’s controversial judicial philosophy, the Senate with a Democratic majority conducted its constitutional duties and gave Bork a full Senate vote.  In 1987, he Senate rejected his nomination by a vote of 42-58.[29]  President Reagan nominated Anthony Kennedy that same year.  The Senate confirmed Justice Kennedy by a vote of 97-0.[30]

1987 was a presidential election year.  Yet, the Democratic-led Senate fulfilled its constitutional duty and had a full vote on the Kennedy nomination.  Democratic Senators could have invoked the Thurmond Rule and used Bork as their justification for refusing to fulfill their duties under the constitution, but that Democratic majority chose instead to follow the constitution.  As discussed below, Justice Kennedy wrote the Court’s majority opinions protecting the civil rights of gay and lesbian Americans by embracing the constitutional principles which Bork strongly opposed.

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Justice Clarence Thomas / Creative Commons

Another contentious confirmation arose in 1991 when President George H.W. Bush nominated Clarence Thomas to succeed Justice Thurgood Marshall.  Thomas, an African-American, was a judge on the US Court of Appeals for the DC Circuit.  Thomas succeeded Bork on the DC Circuit Court and had the same judicial philosophy as Bork.  Even though Thomas was the Assistant Secretary for Civil Rights in the U.S. Education Department and served as the chairman of the Equal Employment Opportunity Commission (EEOC),[31] his judicial philosophy, the original intent approach, is perceived by progressives as unwelcoming to civil rights.

Most civil rights groups opposed Thomas’s confirmation because he was vehemently against affirmative action and did not seem to believe that the constitution gave women the right to terminate their pregnancies.  He appeared to be an ardent states’ rights advocate.[32]  This stance meant that Thomas would likely strike down federal laws that infringe on states’ sovereign power, including federal civil rights legislation.  Indeed, Thomas joined the Court’s majority decision in the 2013 Shelby County v. Holder case that invalidated a provision of the Voting Rights Act of 1965.  This provision required Southern states that had a history of voter intimidation to submit their election laws to the Department of Justice for approval.  Thomas would also avoid creating constitutional rights with Court decisions.  Consequently, he joined the dissenting decisions in all of the gay rights cases in which the Court created constitutional rights.

Thomas’ philosophy was diametrically opposite the philosophy of Justice Marshall.  Justice Marshall took the living constitution approach to interpreting the constitution.    As noted above, this approach allows Court justices to consider changing times, social customs and evolving ideas in modern society instead of only looking at the founders’ original intent when interpreting the constitution.  Marshall used this approach to expand constitutional rights for minorities, women, and people with disabilities.[33]  In 1967, the Senate confirmed Marshall to the Court by a vote of 69-11.  Twenty senators did not vote.[34] Senator Thurmond voted against Marshall.  As an attorney for the NAACP in the 1940’s and early 1950’s, Marshall became a civil rights icon for African-Americans.  Prior to his appointment as the first African-American justice to the Court, he won several major civil rights cases before the Court that ruled unconstitutional the segregation of the races in education, housing, and public transportation.[35]  In these cases, Marshall argued against the very states’ rights and original intent positions which Thomas strongly embraced.

The main issue in the Thomas confirmation was the sexual harassment allegations brought by Anita Hill.  Ms. Hill worked for Thomas both at the Department of Education and the EEOC.  She claimed that Thomas made unwanted lurid sexual advances on her in the workplace.  Thomas denied these allegations ever occurred.  He made the following statement in response:

“This is not an opportunity to talk about difficult matters privately or in a closed environment. This is a circus. It’s a national disgrace. And from my standpoint, as a black American, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured by a committee of the U.S. Senate rather than hung from a tree.”[36]

The committee did not find sufficient evidence to continue investigating the sexual harassment allegations.  Consequently, they gave Thomas a full Senate vote with a committee vote of 7-7.  The Senate confirmed Thomas by a vote of 52-48.[37]  Thomas became one of the most conservative justices on the Court, usually joining Justice Scalia in decisions.  Senator Strom Thurmond voted for Thomas.

The Unofficial Thurmond Rule

In 1968, the Thurmond Rule became an unofficial rule in the Senate when Republican Senator Strom Thurmond of South Carolina suggested that President Lyndon Baines Johnson should refrain from making any Court appointments as it was six months before the next presidential election.   Thurmond wanted to stem the tide of liberal justices on the Court.  LBJ already appointed two liberal justices, Abe Fortas and Thurgood Marshall.

Since LBJ announced that he would not seek reelection in 1968, Chief Justice Earl Warren wanted to give him the opportunity to appoint his successor instead of a Republican President.   Warren worried that a Republican Court appointee would attempt to undo all of his achievements on the Court.[38]  LBJ nominated Court Associate Justice Abe Fortas, who was Jewish, to replace Warren.  The Senate first confirmed Fortas as an associate justice to the Court with a voice vote in 1965. Senator Thurmond vehemently opposed LBJ’s appointment of Fortas as the Chief Justice as he knew Fortas would continue Warren’s judicial philosophy.

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Chief Justice Earl Warren / Creative Commons

Under Warren, the Court decided several major cases in favor of civil rights and civil liberties.  The hallmark of these decisions was Brown v. Board of Education of Topeka, Kansas in 1954 (Thurgood Marshall argued for Plaintiff Brown), which ruled unconstitutional the segregation of the races in public education in the United States.  Brown overturned the Court’s prior decision in Plessy v. Ferguson in 1896 that held separate but equal was constitutional.  In addition to Brown, the Court made sweeping reforms in First Amendment liberties (free speech and religious freedom cases) and established major constitutional rights for those accused of crimes such as the right to have an attorney at trial in Gideon v. Wainwright in 1963.[39]

Southern Senators such as Thurmond were strongly opposed to the integration of African-Americans into white society and the expanded civil liberties which the Court granted under Warren.  Indeed, Thurmond was an avowed segregationist. He claimed that he was defending states’ rights by opposing these decisions.[40]

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Strom Thurmond prepared first draft of Southern Manifesto repudiating the Supreme Court’s 1954 school desegregation decision. February 1956. / Creative Commons

Senator Thurmond authored the Southern Manifesto, which expressly encouraged states to resist the Court’s Brown decision. Nineteen Senators and 77 House of Representatives signed this manifesto, which stated that in Brown “…the Supreme Court of the United States, with no legal basis for such action, undertook to exercise their naked judicial power and substituted their personal political and social ideas for the established law of the land.” The manifesto further stated:

“…the original constitution does not mention education. Neither does the 14th Amendment nor any other amendment. The debates preceding the submission of the 14th Amendment clearly show that there was no intent that it should affect the system of education maintained by the States. “This argument used the original intent interpretation to justify segregation of the races.  Indeed, the manifesto argued that the separate but equal doctrine “restated time and again [by the Court], became a part of the life of the people of many of the States and confirmed their habits, traditions, and way of life. It is founded on elemental humanity and commonsense, for parents should not be deprived by Government of the right to direct the lives and education of their own children.” [41]

This argument of traditions and way of life is now used in the debate of the Court’s gay rights decisions.

Thurmond’s apparent strategy was to delay any confirmation of justices to the Court until the American people elected a new President.  He believed that Republican presidential candidate, Richard Nixon, would beat Hubert Humphrey, thereby allowing for a conservative Court appointee.   Due to Thurmond’s actions and Fortas’s own ethical problems, Justice Fortas withdrew his name from the Chief Justice nomination. Nixon won the presidency and appointed a conservative to the Court, Warren Burger.  Burger was perceived as a weak Chief Justice for his lack of leadership and legal acumen.  Instead of rolling back the constitutional rights recognized by the Warren Court, the Burger Court reaffirmed them. [62]  The Court under Burger recognized a woman’s constitutional right to terminate her pregnancy. [63]

While Thurmond played a major role in defeating the appointment of Justice Fortas as the Chief Justice, Fortas had ethical problems that played a part in preventing his succession to Warren and ultimately required him to step down from the Court in 1969.  He had an advisory relationship with LBJ, which some people viewed as violating the separation of powers.[42]  One could argue that this advisory relationship ran afoot of the principle which the Court first established in 1793.  President Washington requested that the Court issue an advisory opinion on the Neutrality Proclamation of 1793.  The Court declined to issue an advisory opinion as it could only decide cases in controversy brought before the Court pursuant to Article III, Section 2, of the Constitution.[43]  Consequently, Fortas’s advisory relationship with LBJ was the main reason that the Senate blocked him from ascending to Chief Justice.

Finally, it was revealed that Wall Street financier Louis Wolfson agreed to pay Fortas $20,000 for the rest of his life and thereafter to his widow for her life in exchange for undisclosed advice.  Fortas entered into this agreement after LBJ first appointed him to the Court.  However, Fortas voided the agreement after the federal government indicted Wolfson on fraud charges.  This agreement gave more ammunition to Southern Senators like Thurmond who used public pressure to force Fortas to resign from the Court.[44]

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Justice Harry Blackmun / Wikimedia Commons

In 1970, President Nixon appointed Harry Blackmun to replace Fortas on the Court.  The Senate confirmed Justice Blackmun by a vote of 94-0.  He became one of the most liberal justices in the Court’s history.  He wrote the majority opinion in Roe v. Wade in 1973 protecting a woman’s right to terminate her pregnancy in the first trimester.  Justice Blackmun continued the same judicial philosophy of Fortas which Senator Thurmond attempted to prevent with his proposed rule.[45]

The original intent of the Thurmond Rule was based not on the constitution but on his own racial prejudices and bigotry.  He wanted to have justices appointed to the Court who would stop and reverse the expansion of civil rights and civil liberties under the jurisprudence of Warren and Fortas.  This is the same strategy behind the refusal of Senator McConnell and the Republican Majority in the Senate to carry out their advice and consent duty under the constitution.

The 2016 Thurmond Rule – A New Name

When McConnell announced that the Senate would not consider any nomination put forth by President Obama, he renamed the Thurmond Rule the Biden Rule, or Schumer Rule.[46]  Democratic Senators Joe Biden of Delaware and Charles Schumer of New York attempted to avoid their constitutional duty to stop Republican Presidents from appointing justices to the Court during presidential election years in 1992 and 2007. Senator Biden was the chairman of the Senate Judicial Committee in 1992.  He suggested that President George H.W. Bush should refrain from appointing any more justices to the Court as it was a presidential election year.  In 2007, Senator Schumer was on the committee when he suggested that the committee should not consider any Court nominees that President George W. Bush might submit to the Senate.[47]

Biden’s apparent intent was to avoid another contentious confirmation proceeding like the one Clarence Thomas in 1991.   Although there was no vacancy on the Court at that time, Biden did suggest that the committee should delay the confirmation hearings until after presidential elections were finished in November 1992.  Unlike Senator McConnell did with President Obama, Senator Biden never refused to consider a Court nominee that President Bush might submit to the Senate should a vacancy occur.  Although Biden’s statement might have been inappropriate, was attempting to preserve civility in our government during the presidential election year.[48]

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Vice President Joe Biden and Sen. Chuck Schumer / Creative Commons

However, Senator Schumer’s apparent intent was to prevent President George W. Bush from appointing another conservative justice like Samuel Alito.  Alito replaced the first female Justice, Sandra Day O’Connor, who was a centrist judge.  Although her judicial philosophy was often aligned with that of conservative Chief Justice Rehnquist, O’Connor often wrote majority decisions that attempted to find common ground between the two ideological views on the Court.[49]  Alito’s judicial philosophy became aligned to that of Justice Scalia.  Consequently, the Court’s opinions shifted further to the right.  Senator Schumer was concerned that President Bush would replace liberal Justice Ruth Bader Ginsburg with a conservative justice if she had retired during his presidency.  Schumer apparently feared that a conservative justice in place of Ginsburg would cause the Court to significantly restrict civil rights and civil liberties.[50]

It is obvious that Biden and Schumer invoked the unofficial Senate rule that Thurmond created in 1968.  It is true that these senators signaled their intent to abdicate their constitutional duties.  However, the original intent of Biden and Schumer was to preserve civility in the federal government and protect the constitutional rights of all Americans.  Civility and protecting constitutional rights was not the purpose of the Republican Senators in 2016.  Their intent is to put another conservative justice who with an originalist approach to interpreting the constitution as restricting civil rights.

Senators such as Mitch McConnell and Ted Cruz strongly oppose the Court’s pro-gay rights decisions in Lawrence v. Texas in 2003, United States v. Windsor in 2012, and Obergefell v. Hodges in 2015.  In Lawrence, the Court ruled laws criminalizing sodomy between two consenting adults unconstitutional.  These laws were mainly targeting gay and lesbian individuals.  Lawrence overturned the Court’s prior decision in Bowers v. Hardwick in 1986, which held that such laws were constitutional.  In Windsor, the Court ruled unconstitutional a provision of the federal Defense of Marriage Act denying spousal benefits to same sex married couples under federal law.  In Obergefell, the Court ruled laws banning same-sex marriage unconstitutional.

Justice Kennedy wrote the majority opinions for all three of these decisions.  The four more liberal justices joined Kennedy while the four more conservative justices dissented.  Thus, these decisions were 5-4 rulings.  Although Kennedy’s judicial philosophy generally aligned with that of the more conservative justices on the Court, he used the living constitution approach in these cases.

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Senators Mitch McConnell and Ted Cruz / Wikimedia Commons

In his Obergefell dissenting opinion, Justice Scalia declared that the Court betrayed the original intent approach to interpret the constitution. He argued that five justices imposed their values on the American people by usurping the states’ rights to address these issues through their democratically elected legislatures.  Republican politicians such as McConnell and Cruz agreed with Scalia.[51]  McConnell and Cruz also argued that these decisions infringe on people’s religious liberty by forcing them to accept the constitutional rights of homosexuals whose lifestyle violated some religious teachings.[52]  These arguments put forth by Southern Republican Senators in 2016 against the gay rights decisions are the same arguments that politicians in 1968 made against the Court’s favorable civil rights decisions.

Politicians such as McConnell and Cruz want a conservative justice who has the same judicial philosophy as Scalia did.  Justice Scalia consistently used the strict construction of the original intent approach to the Constitution.  As noted above, this approach does not allow the Court’s justices to interpret the Constitution to fit the changing times and customs of American culture.  There were no gay rights in 1788.  Nor did these rights exist when the post-civil war Amendments were ratified.  Furthermore, rights such as women’s reproductive rights which the Court recognized to deserve protection under the Constitution did not exist at the times of the original constitutional ratifications.  This approach provides a cover for prejudice and backwards beliefs held by Senators Thurmond, McConnell and Cruz under the guise of a principle of adhering to a strict original intent interpretation of the constitution.

The “Rule” Applied to Merrick Garland

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Judge Merrick Garland, Chief Judge US Court of Appeals, DC Circuit / Creative Commons

President Obama submitted to the Senate his Court nomination of Merrick Garland to replace Justice Scalia. When he was nominating someone to replace Justice John Paul Stevens, Obama strongly considered Judge Garland before appointing Elena Kagan to the Court.  Several Republican Senators such as Orrin Hatch of Utah praised Judge Garland and indicated that he would be a fine justice.[53]  Garland currently serves as the Chief Judge of the US Court of Appeals for DC Circuit.  He has served on this second highest court in the nation for nineteen years.  He graduated from Harvard University both for his undergraduate degree summa cum laude and law degree magna cum laude. Garland clerked for Chief Judge of the US Court of Appeal for the Second Circuit Henry Friendly and Supreme Court Justice William Brennan.  Judge Garland served as the lead prosecutor in the Oklahoma City bombing case in which he sought and obtained the death penalty against Timothy McVeigh.[54]

The consensus on Judge Garland’s judicial philosophy is that he is a moderate liberal.  That means that he would probably join the liberal justices of the Court on most decisions involving civil rights, civil liberties, and reproductive rights.  However, he appears to have conservative views on criminal law issues.  Judge Garland would most likely become a justice who is well to the left of Justice Scalia’s judicial philosophy.  Garland’s perceived judicial philosophy is to the left of that of Justice Kennedy as well.  Thus, a Justice Garland might very well shift the ideological view of the Court the left.[55]

However, Garland might be reluctant to overturn prior Court decisions.  For example, Garland might not be willing to overturn the 2010 Citizens United case that ruled unconstitutional limitations on campaign contributions that corporations and unions can give political candidates.  Ironically, Justice Kennedy wrote the majority opinion for this controversial decision which has been fiercely condemned by Democratic presidential candidates Hillary Clinton and Bernie Sanders.[56]  Progressives in the Senate such as Democratic Senator Elizabeth Warren of Massachusetts strongly oppose this case and want Court justices who will overturn it.

After receiving the Garland nomination, Senator McConnell immediately announced that the Senate would not have any confirmation hearings and would not proceed with its constitutional duty to give Judge Garland a full Senate vote.  McConnell called Judge Garland to tell the judge that he would not even meet with him.[57]  It is customary for senators in the leadership to at least meet with Court nominees.

Southern Senators McConnell and Cruz would rather abdicate their constitutional duty in the appointment process than to allow Judge Garland on the Court.  They are putting their politics ahead of the constitution and the will of the American people.  The Court needs a full complement of justices to issue definitive decisions.  After the death of Justice Scalia, there are currently eight justices on the Court.  If the Court has split 4-4 decisions, then the constitutional issues now before them, such as reproductive and affirmative action, will all be unsettled until the Senate conducts its constitutional duty to advice and consent on the president’s Court nominee.

Judge Garland is not a controversial Court nominee; nor does he have any apparent scandals surrounding him as had both Bork and Thomas.  Even if Garland had scandals or controversial judicial views, the Senate could conduct investigations to determine whether Garland is fit to serve on the Court.  After all, the Senate rejected Bork’s nomination based on his controversial judicial philosophy with a full vote of 42-58.  The Thomas nomination almost met the same fate with a full vote of 52-48 resulting in a very narrow confirmation.  Furthermore, the Senate forced Justice Fortas to withdraw from the consideration for Chief Justice seat.  These proceedings serve as proof that, when the Senate properly conducts its advice and consent constitutional duty, the Senate could act as an effective check on the President’s appointment power.

Conclusion

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2nd President of the United States John Adams / Wikimedia Commons

President John Adams wrote that we are “…a government of laws, and not of men.”[58] All Americans should respect the rule of law.  Democrats and Republican cannot disrespect the constitution to advance their respective political agenda.  The attempts of some politicians in the Senate to abdicate their constitutional duties are a betrayal of the spirit and express provisions of the constitution.

The Thurmond Rule created great disrespect for the constitution and its principles of freedom.  Thurmond had no respect for this document, even though he claimed to support the original intent of the founders.  He attempted to thwart the freedom it guarantees, such as the integration of the races and equality for African-Americans.  Thurmond’s predecessors, such as Senator McConnell and Senator Cruz, are using the Thurmond Rule in an attempt to stunt the constitutional freedoms of the American gays and lesbians.  They want to restrict women’s reproductive rights, abolish affirmative active, and provide a shield for states’ voter ID laws that tend to make voting more difficult for minorities.

Senator Cruz, who clerked for Chief Justice William Rehnquist, argued that his refusal to provide Judge Garland a confirmation hearing was that Cruz ardently supported the original intent interpretation approach to the constitution.  This very position belies the basic principle of the original intent theory that requires people to follow the constitution by only looking to the intent of the founders and post-Civil War amendments.  There are no provisions in the constitution or its amendments that allow the Senate to abdicate its advice and consent

constitutional duty.  Yet, a former Court clerk who purports to hold the original intent theory as sacred is using this same philosophy as justification not to follow the law of our government.  Cruz is choosing the government of men rather than government of laws.

Senators Biden and Schumer disrespected the constitution as well.  These senators suggested that the Senate wait to consider Court nominees until the presidential election were completed.  Even though their apparent intent was to protect constitutional rights, they should have never suggested that they would be justified in not following the law of the land. Even people who use the living constitution theory must follow the express provisions of the constitution.  If Senator Biden believed that the Thomas nomination created too much strife in the Senate, he should have done better job of governance in the Judiciary Committee. For example, Judiciary Committee Chairman Biden could have focused more on Thomas’s judicial philosophy.  If Senator Schumer strongly believed that Alito‘s judicial philosophy was too controversial, Schumer should have put more effort into convincing his fellow senators to reject Alito.

We The People are the creators and beneficiaries of the constitution.  The founders entrusted the people of America with the future of this great document.  They could have entrusted its future to the states or the representatives of the people, but they knew that if one person or a group of people has too much power, the American Government would become a monarchy or an oligarchy, not a democracy.  It is virtually agreed the original intent of the founders was to create a democratic form of government.   They ensured this democracy would remain intact by creating basic foundations such as dividing the America government into three branches:  the Executive, Legislative and Judicial.  The founders intended these branches to serve as checks and balances against each other.  The American people have the ultimate power over the constitution.  They elect the President (Executive Branch) and the Senate (Legislative Branch).  The president appoints and the Senate confirms or rejects the federal judges in the Judicial Branch.

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President Barack Obama / Wikimedia Commons

The American people elected Barack Obama twice by substantial margins.[59]  They knew his policies and the types of justices whom he would appoint to the Court.  The American people also elected the Senate.  The people allowed the Republican Party to have a majority.  The presumed intent of the people was to put a check on the Democratic President’s power.  However, the 2014 midterm elections had a very low voter turnout.  The 2014 midterm election was the lowest voter turnout since 1942. The minority and young vote, which was high in 2008 and 2012, was very low in 2014.[60]  In any event, the American people did not want the Senate to engage in obstruction as it is doing with the Garland nomination.[61]

Although the most ardent proponents of the original intent theory believe that states play a central role in American democracy, the constitution does not give the states ultimate power over the federal government.  It is the people, not the states, who are the sovereigns in the constitution.  The government answers to the people. The people elected President Obama to carry out the executive branch’s constitutional duties, including appointing justices to the Supreme Court.  The people elected Senators McConnell, Cruz, and Grassley to carry out the legislative branch’s constitutional duties, including advice and consent for presidential nominations to the Court.  Neither Obama nor these senators can abdicate their duties under the Constitution.  If anyone wants to changes to the constitution’s express provisions, the people must give their express consent.  As Chief Justice John Marshall wrote in Cohens v. Virginia, “…the people made the Constitution, and the people can unmake it. It is the creature of their own will, and lives only by their will.”

[1] The American Supreme Court by Robert G. McCloskey revised by Sanford Levinson published 2010, Fifth Edition Chapter 1

[2] Id page 25

[3] Id pages 42 to 43

[4] http://www.npr.org/2016/02/14/466744465/originalism-a-primer-on-scalias-constitutional-philosophy

[5] http://www.fed-soc.org/publications/detail/the-great-debate-judge-robert-h-bork-november-18-1985

[6] http://www.acslaw.org/acsblog/diversity-and-living-constitution-theory

[7] http://www.politico.com/story/2016/02/mitch-mcconnell-antonin-scalia-supreme-court-nomination-219248

[8] http://www.npr.org/2016/02/23/467860960/senate-republicans-agree-to-block-obamas-supreme-court-nominee

[9] http://www.breitbart.com/big-government/2016/03/18/ted-cruz-opposes-judge-merrick-garland-no-hearings-no-votes/. http://www.nytimes.com/live/obama-supreme-court-nomination/donald-trump-rejects-garland-nomination/

[10] http://www.scotusblog.com/2016/02/a-responsibility-i-take-seriously/

[11] http://www.rules.senate.gov/public/index.cfm?p=RuleXXXI

[12] https://www.judiciary.senate.gov/about/history

[13] Id

[14] The Majesty of the Law:  Reflections of a Supreme Court Justice by Justice Sandra Day O’Connor published 2003 page 60

[15] The American Supreme Court, Fifth Edition Chapter 1

[16] https://www.judiciary.senate.gov/about/jurisdiction

[17] https://www.judiciary.senate.gov/about/members

[18] http://www.npr.org/templates/story/story.php?storyId=106528133

[19] http://www.brandeis.edu/legacyfund/bio.html

[20] http://www.senate.gov/pagelayout/reference/nominations/Nominations.htm#vote

[21] http://www.npr.org/templates/story/story.php?storyId=106528133

[22] http://www.biography.com/people/felix-frankfurter-9301106#supreme-court-justice.  http://www.senate.gov/pagelayout/reference/nominations/Nominations.htm#vote

[23] https://www.oyez.org/justices/potter_stewart

[24] http://articles.philly.com/1987-07-06/news/26197190_1_fight-bork-benjamin-hooks-bork-nomination

[25] The Right of Privacy: The Construction of a Constitutional Time Bomb.  By Robert Bork

[26] The Tempting of America page 82

[27] http://www.nytimes.com/1987/07/05/opinion/washington-kennedy-and-bork.html

[28] http://www.nytimes.com/1987/10/10/us/bork-gives-reasons-for-continuing-fight.html

[29] http://www.senate.gov/pagelayout/reference/nominations/Nominations.htm#vote

[30] Id

[31] http://www.supremecourt.gov/about/biographies.aspx

[32]https://web.archive.org/web/20030513064005/http://www.oyez.org/oyez/resource/legal_entity/106/biography

[33] City of Cleburne vs Cleburne Living Center, Inc., Justice Marshall’s partial dissent. Thurgood Marshall: His Speeches, Writings, Arguments, Opinions, and Reminiscences.   www.nytimes.com/1987/01/14/us/job-rights-backed-in-pregnancy-case.html?pagewanted=all

[34] http://www.senate.gov/pagelayout/reference/nominations/Nominations.htm#vote

[35] http://www.biography.com/people/thurgood-marshall-9400241#supreme-court-justice

[36] https://en.wikipedia.org/wiki/Clarence_Thomas

[37] Ibid

[38] Deciding to Leave (Suny Series in American Constitutionalism) by Artemus Ward

[39] The Warren Court and American Politics.  By Lucas A. Powe

[40] Id.  See also https://www.youtube.com/watch?v=Ecy0yRpL8cw

[41] http://www.enotes.com/topics/southern-manifesto

[42] http://www.senate.gov/artandhistory/history/minute/Filibuster_Derails_Supreme_Court_Appointment.htm

[43] The American Supreme Court page 20

[44] http://www.nytimes.com/1982/04/07/obituaries/ex-justice-abe-fortas-dies-at-71-shaped-historic-rulings-on-rights.html?pagewanted=all

[45] Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey. http://www.washingtonpost.com/wp-srv/national/longterm/supcourt/stories/blackmun030599.htm

[46]http://www.politifact.com/truth-o-meter/article/2016/mar/17/context-biden-rule-supreme-court-nominations/

[47] Id

[48] Id

[49] Supreme Conflict: the Inside Story of the Struggle for Control of the United States Supreme Court

[50] Id

[51] http://time.com/3476241/ted-cruz-constitutional-amendment-same-sex-marriage-laws/. http://www.politico.com/story/2015/07/mitch-mcconnell-gay-marriage-ruling-congress-legislation-119630

[52] www.huffingtonpost.com/2014/02/13/ted-cruz-gay-marriage-bill_n_4780699.html

[53]http://www.slate.com/blogs/the_slatest/2016/03/16/the_republicans_who_voted_for_merrick_garland_in_1997_are_against_him_now.html

[54] https://www.cadc.uscourts.gov/internet/home.nsf/Content/VL+-+Judges+-+MBG

[55] http://www.nytimes.com/2016/03/18/us/politics/merrick-garlands-record-and-style-hint-at-his-appeal.html?_r=0t. http://www.scotusblog.com/2010/04/the-potential-nomination-of-merrick-garland/

[56] http://reason.com/blog/2016/01/25/sanders-and-clinton-both-want-to-overtur

[57] http://www.nytimes.com/live/obama-supreme-court-nomination/mcconnell-tells-garland/

[58] Novanglus Essays, No. 7.

[59] http://elections.nytimes.com/2012/results/president. http://www.cnn.com/election/2012/results/race/president/

[60] https://www.washingtonpost.com/news/post-politics/wp/2014/11/10/voter-turnout-in-2014-was-.  http://www.nytimes.com/2014/11/12/opinion/the-worst-voter-turnout-in-72-years.html. http://www.electproject.org/2014

the-lowest-since-wwii/

[61] http://www.cnn.com/2016/03/25/politics/merrick-garland-supreme-court-nominee/

[62] The Brethren by Bob Woodward and Scot Armstrong published in 1979

[63] Roe vs Wade 1973

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