Written by Robert Beltran   

We are in a Constitutional crisis. Hardly anyone is using those words, but it is a very quiet Constitutional crisis nonetheless. The Judicial branch of federal government, at the highest court in the land, is hobbled, and the Constitutional remedy has been attenuated by the Republican majority in the U.S. Senate. The Senate Majority Leader, backed by almost all the other Republican Senators, has declared the Senate will not consider any replacement named by President Obama to fill the vacancy created by the death of Justice Antonin Scalia. One excuse is the claim that lame duck presidents don’t get to appoint justices to the Supreme Court –a claim without precedent, practice, nor basis in the Constitution.

That the U.S. Constitution clearly grants the sole privilege and duty of filling that opening to the President is hardly debatable, and contrary to Republican contentions, remains so until the moment the President leaves office. As we all know, the Senate is charged to advise the President as to who might best fill that slot and to consent to that appointment.

However, since Majority Leader Mitch McConnell has declared the Senate will not advise the President in this matter, nor will it consider his selection for consent, the Senate has abdicated its role. This leaves the nation in the position of a judicial stalemate for matters of national significance. The ramifications are terrific, and not in a good way. Sustaining this stalemate could leave the United States a nation divided against itself. For example, court challenges have been filed in at least several Federal Districts challenging the birthright eligibility of Republican candidate Senator Ted Cruz to serve as president. Two or more of these cases could result in the same or very different decisions at the District level, and a hung Supreme Court, leading to Senator Cruz being able to run for President in only one or two of the Districts. If more suits are filed in other Districts, the situation could become ever more complex.

In the event the election night results were contested as happened in the 2000 Bush/Gore election, inability of the Supreme Court to issue a decision would likely result in a non-decision until the vacancy was filled. The Speaker of the House of Representatives would act as President until the judgeship was filled. Whether he would be able, in an acting capacity, to appoint a new Supreme Court Justice would be a matter of contention that could probably only be resolved by –you guessed it- the Supreme Court. These are only two of many possible –and a few probable- untenable situations the nation is likely to face in the next year if the ninth Justice seat remains vacant.

Fortunately, we are not currently embroiled in a presidential impeachment trial; one can only imagine the ramifications of an evenly split court in that situation.

Few seem to have acknowledged it, but we are in a constitutional crisis. As just mentioned, we are a house divided against itself, and, as president Abraham Lincoln so famously observed, “A house divided against itself cannot stand.”

So how do we resolve this constitutional crisis? There are at least three ways:

• The first requires the Republicans in the Senate to be faced with a situation making it obvious to them that it is in their own interest to allow President Obama to name and have considered a nominee for the Supreme Court.

o The Cruz eligibility question could do it, if the courts allow traction, and unless Cruz is eliminated from the candidacy.

o The President and/or the Democrats in Congress could create a situation the Republicans in the Senate see as more desirable or more threatening than having an Obama appointee fill the empty Supreme Court seat. While it theoretically could be as simple as a traditional political bargain that gives the Republicans a Presidential signature on a measure so dear to their hearts they will relent on the appointment, the probability of such a juicy measure being passed through both houses is unlikely, and no doubt it would come at unacceptable cost to the Democrats. Or the Senate Democrats could hold hostage a measure (say, a defense item) they would normally support that the Republicans see as must-pass legislation.

o It might be a threat from the President to do something Republican see as outrageous –like withdraw from the TPP (personally, I like this one) or suspend all oil and gas drilling on federal public lands.

o Republican realization that the next President will certainly be either Hillary Clinton or Bernie Sanders, especially if Clinton hints she will name her husband to fill the vacancy –or if Sanders hints he will name President Obama to the Supreme Court (I like this one, too).

• The President could sue the Senate for dereliction of duty, enjoining it to hold hearings on a nominee. Even if he prevailed, this would not ensure approval of a nominee, of course, but it would put the process under intense public scrutiny and make the Republicans subject to increased public ridicule for being arbitrary, capricious and politically motivated. In an election year, this could be critical to those senators up for election.

• There is a “nuclear option” available to the President. He could still nominate a Supreme Court candidate, and if the Senate keeps its word and refuses to consider the individual, the absence of any action by the Senate would constitute abrogation of its Constitutional responsibilities and could be deemed implied consent. This would enable President Obama to make the appointment. The Senate would have to sue the President to enjoin him from filling that seat. The case would have to be filed in the D.C. District Court. As it happens, the D.C. District Court is predominantly filled by Democratic appointees. There is a good chance the court would agree with the President that he does have the power to make an appointment when the Senate is not functioning. Dysfunction of one branch of government must not be allowed to force the dysfunction of another. A decision sustaining the President’s action would, of course, be appealed by the senate to the Supreme Court. If the case ended in a 4-4 draw among the Justices, the decision of the lower court would prevail, and would be binding. President Obama’s Supreme Court appointment would stand.

How could he do this, you ask? The key lies in two clauses of the Constitution.

o First, the Constitution employs rather specific wording with respect to the appointment process for filling Supreme Court seats. The key distinction here is the distinction between the words "consent" and “approve.” Nowhere in the U.S. Constitution is the words “approve” used to describe the Senate’s role in the filling of Supreme Court vacancies. The Senate is to “consent,” a softer, more passive word than “approve.” Traditionally, as a matter of practice and procedure, this has meant the Senate proposes candidates for consideration and the President selects one of the candidates or simply names another individual he or she prefers. The Senate then considers and accepts or rejects that person. This is normally termed “approval” but it is actually “consent.” For comparison, consider the “consent of the governed” phrase of the Declaration of independence. While overt consent requires an action, tacit consent exists when the consenting body fails to take action. If the Senate were to actually issue an approval, it would be exceeding its mandate, which is substantiated by a second clause:

o The Constitution provides that the President may make recess appointments to the Supreme Court. Clearly this clause was established to enable the President to keep the third branch of government functioning while the Senate was not able to fulfill its “advise and consent” function. This underscores that the Founders assigned great importance to keeping that branch in operation, and faith in the President to make judicious appointments even without Senatorial consent.

This brings us to our current situation –a Constitutional crisis.

President Obama could make a Supreme Court appointment during the upcoming recess of the Senate, but this Senate has made it a practice to deny the President a recess opportunity by conducting pro forma intersessions. So the window the Founders built into the Constitution has been closed by the Republican majority. This clearly denies the President the ability to carry out his duty to keep the third branch of government functioning and provides the reasonable and Constitutional basis for his action. . At least one Republican Senator has gone so far as to say the freeze on Supreme court appointments should be “permanent” so long as a Democrat occupies the White House. So clearly, the Senate is in long-term “recess” insofar as Supreme Court appointments are concerned.

One final note: The appointment would be precedent-setting. And its applicability might not be limited to Supreme Court appointments. It could break the dam holding back hundreds of federal appointments to judgeships, commissions, administrative offices and more.

So maybe the Senate would like to reconsider its refusal to consider a Supreme Court Nominee?