Scalia’s Vacancy Sets Off Structural Power Struggle

My latest for The Daily Caller examines the coming struggle between the President and the Senate over Supreme Court nominations:

The vacancy of Justice Antonin Scalia’s seat on the Supreme Court has set off a predictable power struggle over his replacement. As that struggle plays out during the coming months, it will serve as a reminder that, as much as Americans love the Bill of Rights, it is not the most important part of the United States Constitution.

At least, that’s what the framers thought. America’s founders were much more concerned with the structure of government and division of powers than whether any particular right was or was not protected. Think about it — if the courts do not have the power to check unconstitutional actions, or the legislature is unable to rein in a power-hungry executive, then the Bill of Rights has no teeth. The structural ability to protect rights is a condition precedent to their protection….

…Our founders were specific about how power should be divided amongst the branches of government. The president has a duty to appoint Supreme Court justices. His appointments are subject to the “consent” of the Senate. And the Senate has no duty to give that consent. This is not hackery. It is the plain reading of the Constitution’s division of power regarding Supreme Court appointments. Such structural concerns were of the utmost importance to the founders. We must be sure to give those concerns their proper attention as the debate over judicial appointments moves forward.

Read the entire piece here.


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