Justice Antonin Scalia’s death was unexpected and sad. He served on the high court for thirty years and was the longest serving justice of the current court. Whether you agreed with his decisions or not, he was a charismatic man who embraced an originalist view of the Constitution. Upon hearing of his death, Republicans chose not to honor his legacy but instead to politicize his passing by using it as a tool to obstruct the democratic process.
Just moments after his death was announced, Senate Majority Leader Mitch McConnell proclaimed, “this vacancy should not be filled until we have a new president.”
The Constitution states that a president’s term is four years and Obama, on the day of Scalia’s death, had 342 days left in his administration. Article II, Section 2 affirms the President’s power to appoint justices to the Supreme Court with the Senate’s consent. The Senate need not approve the nominee but does have a duty to vet carefully any candidate nominated by the President.
Republicans claim to have precedence on their side. But according to the New York Times, in this past century, six out of eight Supreme Court nominees considered during an election year were approved.
There is clearly hypocrisy on both sides. Republicans point to the so-called “Biden Rule,” referring to Vice President Joe Biden’s senatorial speech back in 1992, in which, speaking hypothetically, he opposed election-year Supreme Court appointments. Yet, in 2008, Senator Mitch McConnell had argued against the “Thurmond Rule” (named after a long-serving South Carolina Republican) in which judicial nominations would not be reviewed within six months of a presidential election. McConnell said, “There is no such rule.”
Indeed, there’s no such rule. In fact, in 1988, the Democratic-controlled Senate confirmed President Reagan’s Supreme Court nominee, Anthony Kennedy, after his first nominee had been rejected. Kennedy was unanimously approved by the Senate in February 1988 despite the fact that it was a presidential election year in which the sitting vice-president was seeking the presidency.
While Senator Pat Toomey opposes any action, he admits that the Constitution is on the President’s side. “President Obama certainly has the authority to do so,” Toomey stated. “But let’s be clear — his nominee will be rejected by the Senate.”
The Republican Party seemed united on their intent to thwart a sitting president’s constitutional power. Then Obama nominated a moderate whom the Republicans have a record of supporting. Merrick Garland is a well- respected federal appeals justice who prosecuted both the Oklahoma City bombing and the Unabomber cases. He has received past bipartisan support as a Supreme Court nominee, including from Senator Orrin Hatch (Utah-R) who said in 2010, “I know Merrick Garland very well…he would be very well supported by all sides.”
In a recent poll, 8 in 10 Americans believe the Republicans are playing politics with the Supreme Court. The majority of Americans want the Senate to take action on the President’s nominee. And now, it appears, so do some Republican senators. Kansas Senator Jerry Moran has stated publicly that the nominee should receive a fair hearing. Sen. Mark Kirk (R-Ill) and Susan Collins (R-Maine) also support hearings.
Senator Toomey recently announced that he’ll meet with Garland. However he contends that there will be no further action on the nomination until Americans “weigh in and select a new president.” Yet, Americans did elect a president…in 2008 and 2012. Obama is still president and has the responsibility and authority to fill the vacancy.
The issue Republicans have is not with an election year or even with Obama’s choice of nominee. These tactics are nothing more than the Republicans hijacking an essential branch of our government for their own political gain.
In 2004, Justice Scalia uttered the prophetic words, “one shudders to think what sort of political turmoil will greet the next nomination to the Supreme Court.” He also expressed concerns about the “intrusion of politics into the judicial appointment process.”
Then again, some may argue that Scalia had a desire to uphold the Constitution.
Merrick Garland deserves full consideration by the Senate and Americans deserve a democratic process not corroded by politics.