Republican senators will apparently reject any nominee to the U.S. Supreme Court selected by President Barack Obama. This is a bald-faced political act seeking partisan advantage which ignores Article II of the Constitution. Sadly, GOP leaders were so anxious to gain the acclaim of their own right wing that they surged into partisan combat only minutes after learning the news that Antonin Scalia had died.
Senate Majority Leader Mitch McConnell declared, “The American people should have a voice in the selection of their next Supreme Court justice. ... Therefore, this vacancy should not be filled until we have a new president.”
McConnell’s statement, coupled with a similar declaration from Judiciary Committee Chairman Chuck Grassley, R-Iowa, makes it highly unlikely the Senate will act on a nomination.
Hours later, the 2016 Republican presidential candidates all called on GOP senators to block any Obama appointee. Front-runner Donald Trump, during the televised debate in South Carolina said, “I think it’s up to Mitch McConnell and everyone else to stop it. It’s called delay, delay, delay.” Sen. Ted Cruz, R-Texas, pledged to lead a fight in the Senate to block any Obama nominee, stating, “We are one justice away from a Supreme Court that will strike down every restriction on abortion. ... We are one justice away from a Supreme Court that would undermine religious liberty for millions of Americans.”
This remarkable demand has no real precedent. Election-year nominations to the Supreme Court are extremely rare. The last time a president (Franklin Roosevelt) nominated a justice during a presidential election year and that nominee (Frank Murphy) was confirmed was 1940.
Justice Anthony Kennedy, appointed by President Reagan, was confirmed during an election year, in 1988, but the nomination was made the year before.
Some will point to the rejection of President Lyndon Johnson’s 1968 nomination of Justice Abe Fortas to become the chief justice. However, the rejection had nothing to do with presidential election-year politics. Many of the votes against Fortas were by Democrats.
Republicans will claim that the refusal to take up the nomination made by a president in his last year in office follows the Senate tradition known as the “Thurmond Rule.” Both parties for a number of years have stopped processing federal circuit court nominations some time midway in the final year of a president of the opposing party.
This practice has always seemed to me to be an affront to the “appointments clause” of the Constitution. However, even accepting this precedent, it has never been applied to a Supreme Court nomination and should not be.
Article II Section 2 clearly states, “[The president] shall nominate, and by and with the advice and consent of the Senate, shall appoint … judges of the Supreme Court.”
In 2005, Democrats blocked a number of President George W. Bush’s circuit court nominees, not because they were stalling until a new president took office, but because they believed his nominees to be too far out of the judicial mainstream.
At the time, an outraged Sen. Mitch McConnell demanded, “Let's get back to the way the Senate operated for over 200 years, up or down votes on the president's nominee, no matter who the president is, no matter who's in control of the Senate. That's the way we need to operate."
He was right then, wrong now. Rejecting the president’s nominee, before the nomination is even made, shows disrespect for the president, the Senate, the Supreme Court and the Constitution.
The president should and will nominate someone to replace Scalia. The Judiciary Committee should hold hearings and report that nominee. The Senate can then work its will. The Republicans hold a majority in that chamber, so if the nominee can be shown to be unqualified, they can vote that nominee down. At least then, the Constitution will have been faithfully served.