The unexpected death of U.S. Supreme Court Justice Antonin Scalia is a challenge not just to his family, friends and colleagues, but a threat to the judicial health of the country. Republicans in the Senate should rethink their knee-jerk decision not to entertain any nominee President Obama sends them, both for the nation’s good and the party’s.
Scalia, who died on Saturday, was as conservative a member as the court has had in recent memory, but was widely admired for his intellect and held in great affection even by the court’s liberal members. That didn’t stop the instant resort to partisanship, with Senate Majority Leader Mitch McConnell, R-Ky., vowing that the Senate would not consider any appointee that Obama might forward. Many other Republicans, including the presidential candidates, agreed. But it’s a mistake.
First of all, it is Obama’s constitutional duty to nominate someone to fill that position and, while nothing compels the Senate to take it up, respect for the court and the Constitution should be sufficient cause. Indeed, to honor Scalia, who valued the original intent of the Framers of the Constitution, it is necessary to do what the Constitution requires. It makes no exception for filling vacancies in the last year of a president’s term. And, in fact, the politics of such an appointment could work to Republicans’ advantage.
Consider: For any appointment to succeed in the Senate, Obama will have to nominate someone who is something of a political centrist, probably one who has already been overwhelmingly approved by the Senate for an appellate court post. Identifying such an appointee would not only be good politics, but would be good for a country that is fracturing along increasingly divisive party lines.
To be sure, that person would not be as conservative as Scalia was, but neither will he or she be as liberal as a nominee of a President Clinton or Sanders. Yes, there could be a President Trump, Cruz, Bush or Kasich, but there is also a real chance that whoever wins the election will be dealing with a Senate that is controlled by Democrats.
To impose a new rule that Supreme Court justices cannot be confirmed in the last year of a presidency may play to the base of the party out of power, but it ignores the likelihood of seating a justice who is broadly acceptable to most of the country, and risks harming Republican electoral chances in swing states this fall.
It’s also terrible for the court, itself. Already, Scalia’s death means that for the rest of this term, which extends until early summer, the court would be functioning with just eight members, risking tie votes that leave previous rulings in place. Among the issues in play are decisions regarding abortion, affirmative action, the contraception requirement in the Affordable Care Act, union fees and voting rights.
But if the Senate refuses to consider any nominee Obama sends for consideration, the vacuum would almost certainly persist through the term ending in mid-2017. A new president won’t be sworn in until late January and by the time he or she nominates a new justice and the Senate finally moves on it, the term will be over, or nearly so.
It’s a terrible maneuver by Senate Republicans, made without considering its implications for the court and for the country. Of course, there can be little doubt that, were their roles reversed, Democrats would have drawn a similarly foolish line in the sand. Hypocrisy is a bipartisan affliction.
But it happens to be the Republicans who are making the unpatriotic decision today. They need to take a deep breath and think about the likely consequences of their action and then do what the Constitution envisions.