Horner: The Speech Sen. McConnell Should Give about Supreme Court Vacancies

/, Conflict of Interest, Horner, Paris Climate Treaty, U.S. Congress, War on Coal/Horner: The Speech Sen. McConnell Should Give about Supreme Court Vacancies

by Chris Horner, E&E Legal Senior Legal Fellow

This week, reports suggest that President Obama will purport to join the other nations, from North Korea to Norway with others in between that have already ratified the Paris Climate Treaty — as required by their respective systems for treaty commitments — and claim to unilaterally “Accept” the treaty on behalf of the United States.

With the Senate’s other notable role in Art. II, Sec. 2 — approval of Supreme Court nominees — also in the news again, E&E Legal Senior Legal Fellow Chris Horner, who has written about this treaty process for nearly two decades, suggests the following course for Senate Majority Leader McConnell to respond to this usurpation:

In a February Washington Post op-ed, Senate Majority Leader Mitch McConnell and Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) staked out an early position against President Obama nominating a Supreme Court Justice to fill the vacancy left by the death of Antonin Scalia, let alone the Senate confirming a new justice in this election year as Mr. Obama prepares to leave office. 

In response, the White House nominated D.C. Circuit chief judge Merrick Garland, whose nomination the Senate, true to McConnell’s word, has chosen not to act on.  The white House has not given up, and indeed occasionally keens in outrage over the Senate’s choice of how to perform its constitutional function.  With the White House now moving rather outrageously to purport to join the Paris Climate Treaty, in the face of many other nations properly ratifying it through the treaty process even the United Nations acknowledges is appropriate, there is a ready solution to this fight, one involving retreat by none and strengthening of our constitutional process and protections and process.

This is far more important, it seems, to correct President Obama’s hijacking of the shared treaty power and process as supposedly his alone than the Senate once again choosing not to act, just yet, on a Supreme Court nomination. 

The former promises far graver consequences though both moves promise decades of detrimental precedent if mishandled. They need not be. 

Let us consider a winning course adjustment in the face of events. A Senate floor speech by the Majority Leader, seizing on the extant issues and Mr. Obama’s newly discerned solemnity about constitutional obligations under Article II, Section 2, could go something like this:

“Recently, President Obama has proclaimed a somewhat newfound dedication to Constitutional prerogatives. He has expressed particular fealty to Article II, Section 2. That provision of our Constitution creates shared powers for making treaties and filling high appointive offices, including Supreme Court vacancies. 

Those powers, reading Art. II, Sec. 2, in pertinent part are that:

The president…shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court

The President insists that prompt Senate execution of its role in the shared Executive-Senate hierarchy is a solemn duty. At least, regarding a potential nomination to the Supreme Court. Yet it is difficult to conceive that a president, particularly this one schooled in the Constitution, read Art. II, Sec. 2’s discussion of judicial appointments having skipped over the treaty-making power laid out immediately prior thereto. 

What he no doubt also saw is that the Constitution here implies a majority vote for judges, as is indeed our custom; it also expressly requires two-thirds Senate approval of treaties.

That is, the Constitution makes both functions shared functions, requiring advice and consent of the Senate. Both are serious undertakings to be collaboratively and deliberately performed. One of them—binding the United States in international commitments—is by design much more difficult to attain even than filling a lifetime appointment to the High Court.

So, we arrive at this moment with relevant undertakings in the news: In December, the President is, according to media reports, ready to claim to accept on behalf of the United States terms of an agreement that, by its development and by our history, by its level of detail and indeed the cost of its commitments, is plainly a treaty.

I of course refer to the Paris climate change agreement, already being ratified around the world by legislative bodies as the treaty it plainly is. Of course, these other nations do not share the United States’ obligations under Paris, but that is a separate point.

President Obama and Secretary of State Kerry have insisted, since before there even was a Paris treaty, that whatever was agreed in Paris, well, we would not call it a treaty.

Secretary Kerry explained, in testimony to the House of Representatives, that in his mind treaties are no longer possible in the U.S. Notably, he said this two days before the Senate ratified a multilateral nuclear security treaty.

So, what Secretary Kerry was saying is that agreements for which the president is unable to obtain sufficient popular and political support are not possible to attain in the United States. Which indeed is what our system was designed to ensure, with its unique requirement of two-thirds support of the Senate.

Being unpopular doesn’t make a treaty not a treaty; and an agreement being unpopular is not reason to abandon our treaty process. To the contrary, it is reason to remember and follow our treaty process; to treat Art. II, Sec. 2 of the Constitution as solemnly as the President tells us he does.

We recall France’s recently retired Foreign Minister Laurent Fabius expressing his awareness that, were Paris considered a treaty in the U.S. it would fail, and therefore that the plan was to not pursue it as such. So Paris is not a treaty, we are told, even as the White House boasts that it is “the most ambitious climate pact, ever”, even more ambitious than the two climate treaties that came before it, in 1992 and 1997. And with countries now ratifying it as a treaty.

Have no doubt, Paris is a treaty. Following on President Obama’s recent vows of constitutional fidelity, we should note that nowhere does Art. II, or anything else in the Constitution, say that whether an agreement is a treaty is solely up to the President. That is, there is no support for President Obama’s position that the Senate’s shared role in the treaty-making process exists at his pleasure. 

The Senate, with its constitutionally provided, equal role in the treaty function can conclude that a treaty is indeed a treaty—this is a role the Constitution gives heightened importance to, with its supermajority requirement even greater than for the Senate’s undisputed role in approving Supreme Court justices.

The President would never purport to fill a lifetime seat on the Supreme Court, simply avoiding the Senate because a preferred nominee is obviously too radical to attain the approval of fifty one senators. The idea is of course on its face absurd.

We see no reason to accept, suddenly, the similar precedent of that approach on treaties, circumventing the Senate because the White House apparently thinks a pact is too radical to obtain approval of two-thirds of Senators. Indeed, with this requirement the Constitution makes plain that the Senate is to take its shared power in treaty making even more seriously than considering nominations to the Supreme Court.

It is important that the world know, when President Obama purports to commit the United States to the Paris climate treaty with a mere signature, when he deposits that signature along with other nations’ instruments of treaty ratification, that he is doing so pending Senate approval.

The United States does not commit itself to terms like those in the Paris treaty—which terms include promises of ever more money, and ever stricter “global warming” restrictions every five years—by ducking this constitutional provision the President recently assured us he holds sacrosanct. 

Just two months after the administration claimed to have concluded the Paris treaty this past December, we saw the unfortunate death of Justice Scalia. This now brings us to the issue which prompted these recent presidential expressions of fealty to the Constitution’s original intent.  

We confront both the President’s reluctance to involve the Senate in one of its Art. II, Sec. 2 functions, approving treaties, before the U.S. may be bound, and at the same time his claim that the Senate must promptly engage in a different Art. II, Sec. 2 function, approving nominees to the Supreme Court before they may be seated on the bench.

As Senator Grassley and I explained, citing statements by Sen. Reid and other Democrats, Art. II, Sec. 2 does not say the Senate has a duty to give presidential nominees a vote, only that the President cannot appoint those nominees without a vote.

Nonetheless, I am willing to schedule a vote on the President’s nomination to fill the vacancy on the Court after we consider the Paris climate treaty for the required advice and consent. 

That is the order in which these issues arose, as well as the order of importance the Constitution affords them. 

This presents the opportunity to solve the President’s desire—obtaining consideration of a lifetime appointment to the High Court—while enabling us to solve our problem—the President’s attempt to bind this country, future Congresses, administrations and even the courts to a climate treaty without following our process for making such treaty commitments.

So I am today making our offer to do so. We will consider these pursuits in the order of the importance they are given in the Constitution, as well as the order in which they arose.

With its requirement of two-thirds approval of the Senate, the Constitution elevates Senate approval of treaty commitments to a place of the highest importance.

The Senate will consider the President’s Art. II, Sec. 2 nomination to fill a Supreme Court vacancy soon after it considers the President’s Art. II, Sec. 2 Paris climate treaty.

Practice and protocol suggest that the Senate will wait until the president transmits the treaty, asking us to vote on it; just as practice suggests the Senate will wait for transmittal of a nomination before considering a potential Supreme Court Justice.

Nothing, however, says the Senate must vote on a Supreme Court nominee, or that it cannot vote on the Paris agreement now that it has been struck and the President prepares to assert he is committing the United States to its terms.

Regardless, under this arrangement I set forth today, we will await the President’s transmittal of the Paris treaty and, after considering that, will proceed to his nomination of a candidate to the Supreme Cour.

President Obama has spent considerable energy, in one of these two matters, extolling the seriousness with which he holds Art. II, Sec. 2. The Constitution is not a buffet from which presidents can choose the provisions they agree to abide; in this case, the very same paragraph applies to both issues at hand. I wish to assure the President that we in the Senate take this as seriously as he assures us he does.

To solve this problem and indeed resolve both of these issues, we have informed the President the Senate will consider his Supreme Court nominee under Art. II, Sec. 2 soon after considering the Art. II Sec. 2 Paris climate treaty. The chamber awaits his participation.”

Such a move would solve two issues, one of the highest constitutional importance, and the other purely political (SCOTUS).

President Obama lectures the Senate about Art. II, Sec. 2 based on a double misreading. Art. II, Sec. 2 does not require the Senate to vote on judicial nominees, as Sens. McConnell and Grassley have already made clear. They should now explain what it does require: the submission of treaties to the Senate for its advice and consent.

The worst outcome of all is Senate complicity in further eroding our constitutional system of checks and balances, agreeing only to perform those Art. II, Sec. 2 duties that the president says they may perform.  The Paris Climate Treaty is a treaty, and the Senate should state as much. By so doing, they would freeze the signature in place awaiting Art. II, Sec. 2 approval.

This is a version of a post that appeared on February 24 at https://cei.org/blog/speech-sen-mcconnell-should-give-about-supreme-court-vacancies