Sunday, February 14, 2016

Nonpartisan comment on the Supreme Court vacancy

Whatever one makes of the issue of whether a president with 11 months left in his term should be able to appoint a Supreme Court nominee who, under prevailing custom, would be approved unless major particular objections were found, the current controversy tells you something about the state of constitutional law (and high-level statutory interpretation) these days.

It's not entirely healthy that accidents of exact mortality timing versus the election calendar should affect so enormously the outcome, perhaps for decades to come, of so many consequential legal issues.  It  almost shouts out "Ignore the man behind that curtain!" with regard to how people on the losing side, whichever it may be in the future, will look at 5-4 (and indeed, not just 5-4) decisions that have heated dissents.

Among the broader underlying points is that the rule of law, as a doctrine that requires sufficient consensus for everyone to accept that "you win some, you lose some, and that's just how it is," is of questionable sustainability when the substantive disagreements grow too heated and/or too great.

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