Greg Weiner argues, in a much-discussed Law and Liberty post, that “constitutional conflict is not a sign of constitutional crisis. It is, rather, a sign of constitutional health.”
However, if this is the case, why are Americans so quick to do exactly what Weiner argues is deeply problematic for our constitutional order: namely, elevate disputes between the branches to the level of crisis rather than seeing them as the generator of substantive arguments on behalf of institutional and partisan positions?
Two untenable arguments, and one constitutional solution, surround the debate roiling over Justice Antonin Scalia’s successor. One argument, from the Right, is that President Obama is duty-bound, with nearly a year left in his term, not to appoint a successor at all—a claim with no constitutional basis and whose supposed authority in custom is a phantasm. The second, from the Left, is that the Senate’s duty is reflexively to confirm whomever he selects. Yet the Senate is not the executive’s Human Resources Department, confined to checking references and résumés.