As Republican presidential candidates invoke Supreme Court Justice Antonin Scalia’s legacy, all insisting that his suddenly vacant seat shouldn’t be filled until a new president is in place, it is helpful to ask: What would Scalia do?
First, Scalia would read the law and, without much chin-stroking, recommend the obvious intent of Article II, Section 2 of the Constitution, which reads: “[The president] shall nominate, and by and with the advice and consent of the Senate, shall appoint . . . judges of the Supreme Court.”
See? That wasn’t complicated. And the Senate can always reject a nominee. Yet Majority Leader Mitch McConnell (R-Ky.) made it clear that no Supreme Court nominations would get to the floor. Somewhat less rigid, Sen. Chuck Grassley (R-Iowa), chairman of the Judiciary Committee, has said he’ll wait to see who the nominee is before deciding whether to convene a hearing.
All Republican candidates have expressed agreement with McConnell, with Donald Trump being the most vocal and least nuanced: “Delay, delay, delay,” he said inimitably at Saturday’s debate in South Carolina, just hours after the nation learned of Scalia’s death.
As unseemly as such political proclamations are so soon after the justice’s death, Scalia likely would have found the shenanigans childishly amusing. Unerringly faithful to the rule of law — and deferential to the executive and legislative branches — he would have understood the politics but not the point.
The law is clear.
But politics are something else, and Republicans have decided that, at least on this matter, the people should have a voice. Inarguably, with three justices likely to retire during the next presidency and Scalia’s seat now empty, the stakes couldn’t be higher.
But, if you’ll pardon this intrusion of logic, haven’t the people already had a voice? Didn’t a majority of the people reelect President Obama, and doesn’t he have nearly a year left to serve out his term? Lame duck doesn’t mean dead duck — and this president’s still quacking.
Now, if you don’t really like democracy, we can talk. Originalists well know that the Founding Fathers had no interest in everybody having a voice.
But these same originalists would have to concede that it’s the president’s job to nominate a replacement for an empty Supreme Court seat and the Senate’s job to advise and consent — or dissent, as the case may be.
Yet to Republicans, the idea of Obama fulfilling his constitutional responsibilities falls somewhere between apocalyptic and absurd. Sort of like when people used to walk up to Scalia and ask, When did you first become an originalist? — prompting the justice subsequently to remark: “As though it’s some weird affliction, you know, ‘When did you start eating human flesh?’ ”
Love or hate Scalia, the Supreme Court just became a far, far duller place.
So why would the GOP, professed stewards of original intent, seek to thwart the Constitution’s clear purpose? Again, not complicated.
First, because several cases that Republicans hoped would result in their favor hang in the balance. With a 4-to-4 vote, the lower courts’ rulings stand.
All will gladly remind us that Democrats have behaved similarly. In 2007 — 18 months before President George W. Bush’s term was up — Sen. Chuck Schumer (D-N.Y.) recommended that the Senate not confirm any Bush nominee to the Supreme Court “except in extraordinary circumstances.” And Republicans will never forgive Democrats for the circuslike confirmation hearings of Robert Bork and Clarence Thomas. They’ve been keen to return the favor when the balance of powers shifted their way.
Even understanding these reasons, Republicans are playing with fire. Is this really a precedent they wish to set? Which of these candidates in the fourth or eighth year of his presidency would surrender his own nominating powers to a successor? And, finally, what if the next president is Hillary Clinton or Bernie Sanders?
The GOP’s calculation, apparently, is that the greater risk lies in Obama’s nominating a reasonably moderate liberal who passes all the usual tests that Republicans can’t rationally block. If Obama were feeling frisky, he might select a Hispanic or Asian judge, thus helping ensure that the Republican “Big Tent” collapsed from the weight of emptiness.
All things considered, it may seem wiser to avoid the advise-and-consent process, but hypocrisy takes no prisoners. You can’t attach yourself to Scalia’s originalist virtues and also ignore the rule of law he so passionately defended. Scalia’s advice might be his own reflections on being a good and faithful judge:
“You have to resign yourself to the fact that you’re not always going to like the conclusions you reach.”
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