Last I checked, presidents are elected for four years, not three. Which means President Obama should quickly nominate a replacement for Justice Antonin Scalia. Then the Senate should play its assigned role.
For the Senate to shut down the confirmation process would be bad for the court, bad for the country and, ultimately, bad for Republicans.
It would be bad for the court because it would leave a vacancy for more than a year, stretching across two terms and, in any number of important cases, preventing a majority from having a definitive say. (A 4-4 split affirms the lower court ruling and lacks value as precedent.)
It would be bad for the country for similar reasons. Citizens deserve conclusive answers on issues important enough to reach the high court, and divisive enough to split the justices, whether that involves Obama’s executive actions on immigration, Texas’s restrictive abortion law or the role of public-sector unions. They also deserve a functioning political process. Refusing to go forward would serve to deepen and entrench the existing partisanship and ensuing gridlock.
Finally, a Senate work stoppage would, in fact, be bad for Republicans. In the nation’s capital these days, everything is political, every institution politicized. That may be inevitable and irreparable, yet tables here have a way of turning. One party’s obstructionism ends up hurting it down the road.
Of course, a president in the final year of his second term, confronting a Senate controlled by the opposite party, is in a different position than one facing a high court vacancy earlier.
This reality appropriately shapes and constrains the president’s choices about who can win confirmation. Throw in the filibuster, and it is clear how severely limited Obama’s options are. Indeed, considering that any nominee must clear a 60-vote threshold, what is the risk Republicans perceive in following the regular order of holding hearings?
And as a pure matter of ideological calculation, might not conservatives be better off with what would have to be a consensus Obama nominee than gambling on winning the White House? What if instead they face a would-be justice nominated by a newly elected Hillary Clinton or Bernie Sanders, and a Senate controlled by Democrats?
At some point, with a lame-duck president and an election looming, confirming a new justice is simply not feasible. But as the ranking Democrat on the Senate Judiciary Committee, Vermont’s Patrick J. Leahy, tartly noted, “It is only February.” Running out of time is not a credible claim.
Listen to the Republicans, in the Senate or on the campaign trail, arguing for inaction. Their claims proceed from the position of raw power, not constitutional language. Unpack this statement by Judiciary Committee Chairman Charles E. Grassley, who will face the first, critical choice of whether to hold hearings on Obama’s nominee.
“Given the huge divide in the country, and the fact that this president, above all others, has made no bones about his goal to use the courts to circumvent Congress and push through his own agenda,” the Iowa Republican said in a statement, “it only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court Justice.”
A divided country elected this president and this Senate. Doesn’t it make sense, in Grassley’s terms, that we “defer” to the votes Americans already cast? As to circumventing Congress and misusing the courts — gee, we’ve seen an awful lot of conservatives turning to the courts to try to circumvent the legislative process. (See Obamacare.)
History offers no refuge for Republicans here. Grassley’s argument that it has been “standard practice” that nominees are not confirmed during an election year conveniently ignores the fact that such vacancies are thankfully rare. There is no standard practice.
The presidential candidates have been even more strident. I’ll single out Ted Cruz, because he’s both a former Supreme Court clerk and a current member of the Senate Judiciary Committee.
“We should not allow a lame-duck president to essentially capture the Supreme Court in the waning months of his presidency,” Cruz told ABC’s George Stephanopoulos on Sunday.
Capture? Read the Constitution, senator. The president “shall nominate.” Not “shall” unless some unwritten nominate-by date has passed. So much for strict constructionism and conservatives who bleat about their fealty to the constitutional text.
The Senate is authorized to advise and consent. It is not entitled to conduct a constitutional sit-down strike.
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