The death of United States Supreme Court Justice Antonin Scalia has reverberated throughout American politics. All GOP presidential candidates have used his passing to underscore the need to put a Republican in the White House. The Republican congressional leadership agrees, insisting not only that President Barack Obama should not nominate a candidate, but they will not participate in the nomination process, even though that means ignoring the Constitution. This disregard for their constitutional responsibilities is striking and sets a dangerous precedent.
Article II, Section 2, Clause 2 of the U.S. Constitution says that the president “shall nominate … judges of the Supreme Court,” but he will do so “by and with the advice and consent of the Senate.” Neither duty is optional: Both the president and the Senate “shall,” or must, play their part.
It was something of a surprise, then, when only hours after the death of Scalia, Senate Majority Leader Mitch McConnell, the top Republican in Congress, declared that no Obama nominee would be approved before the presidential election. There would be no hearings, no vote not even consultations with Obama’s nominee. McConnell’s position, quickly picked up by fellow Republicans, was that a Supreme Court nomination was too important for an outgoing president. Instead, they would wait until after the November elections to let voters have their say.
In the weeks since Scalia’s death, that decision has sparked an uproar, but McConnell and Sen. Charles Grassley, the Republican who chairs the Senate Judiciary Committee that hears such nominations, remain firmly opposed to taking any action. After meeting with the president at the White House last week, McConnell explained, “We will look forward to the American people deciding who they want to make this appointment through their own vote.” Grassley added that “we all know that considering a nomination in the middle of a heated presidential campaign is bad for the nominee, bad for the court, bad for the process, and ultimately bad for the nation.”
More likely, it is bad for the Republicans. Scalia was the Supreme Court’s most vocal and brilliant conservative. His death means the court is evenly split between liberals and conservatives and an Obama nominee, while likely to be more of a centrist than a radical liberal, would nonetheless lean to the left. That prospect outrages — and scares — conservatives who feel that they represent the nation and that the court should reflect their views. (Traditionally, conservatives have had a majority on the court.) They worry, as Texas Sen. Ted Cruz, one of the men running for the party’s presidential nomination, pointed out, that the court could void Second Amendment rights (to bear arms) or make abortion legal anywhere without restrictions.
When challenged about that brazen obstructionism, GOP senators note that precedent is on their side: No Supreme Court justice has ever been nominated in the final year of a president’s term. That is partly true, but that is because for over 100 years no Supreme Court vacancy has arisen in the last year of a presidential term. In the last 80 years, two justices have been confirmed in the final year of a presidency, although the vacancies occurred and the nominations were made the year before.
They reply that former Judiciary Chairman Sen. (now Vice President) Joseph Biden said that he would take the same position if roles were reversed. Even Sen. Barack Obama backed the idea of a filibuster against a Supreme Court nominee. Unfortunately, the Biden statement is a response to a hypothetical situation; when required to actually assess a nominee, then Sen. Obama did so — and voted against him.
That vote reflects the absurdity of the Republican position. The GOP has a majority in the Senate. It could have consultations, hold hearings and reject the nominee on a straight party vote. That way it would be upholding its constitutional duties while still protecting its political (and partisan) prerogatives. Its current course makes it look petty, irresponsible and partisan. Given the growing numbers of Americans — even a Fox News poll reported 62 percent want the vacancy filled by an Obama nominee — who want action, that is a politically risky decision.
The failure to act is already having consequences. A divided court can still make decisions; if a majority is not reached, then the lower court decision holds. Reportedly, companies are now settling cases for fear that an appeal might take them to a Supreme Court that is less business-friendly. Conservative activists are also not appealing cases they lose out of concern that a divided or liberal court might create a precedent inimical to their interests.
There are two hypocrisies in the GOP position. The first is that senators are no less lame ducks than presidents. Why do their prerogatives last for six full years, if the president’s does not last four? The second will become clear if a Democrat wins the presidential race. The GOP logic dictates that a Democratic president’s nominee should be automatically affirmed because the people will have spoken. For eight years, however, the Republican Party has disregarded Obama’s choices — the backlog of nominees for courts, agencies and even ambassadorships is long — claiming that senators also represent constituencies that have to be respected. Their problem is not an Obama nominee, but a Democratic one. The only question now is how much Obama will try to shame them as they stick to their current policy.