Within hours of the death of Justice Scalia, talk turned to who President Obama might nominate to fill his seat, and whether the United States Senate would consider that nomination in this presidential election year. Senator McConnell (R-KY), the Senate Majority Leader, quickly announced that no nominee would be considered. “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,” he said. A few days ago, the entire Republican contingent on the Senate Judiciary Committee signed a letter to that same effect. That signers of that letter stated that their “decision is based on constitutional principle and born of a necessity to protect the will of the American people.”
There has been much “gotcha” talk about how both Democratic and Republican senators may have in the past taken different positions about the idea of considering a Supreme Court nominee in a presidential election year than they are asserting now. But that is just a parlor game, since each party can point to examples of the other’s changed position. For what it is worth, however, a Democratic majority in the Senate confirmed Justice Kennedy, who had been nominated by President Reagan, early in 1988, a time when that president, like President Obama now, had less than one year until the end of his term, and a presidential election was to come later that year.
There is a certain irony, to say the least, in the claim of Republican Judiciary Committee members that their decision not to consider any nominee “is based on constitutional principle.” The Constitution, of course, provides the president with the power to nominate Supreme Court Justices, with no limitation to non-presidential election years.
Many, if not all of the Senators who signed the Judiciary Committee letter frequently pontificate about the need to venerate the Constitution and apply its language strictly. One such Senator, Ted Cruz (R-TX) (himself a candidate for president) supposedly memorized the Constitution in mnemonic form. His memory banks doubtless tell him that “constitutional principle,” or at least the text of the Constitution, offers no support at all for refusing to consider any nominee that President Obama might offer.
Reliance on “the will of the American people,” or allowing Americans to “have a voice in the selection of their next Supreme Court Justice,” is no more persuasive. The American people spoke when they elected President Obama in 2012.
Nor is it an answer to say, as Justices Alito and Breyer both have stated, that the Court can function with eight members. Of course it can. But why should it?
This blog previously advocated that the New Jersey State Senate consider nominees put forward for the Supreme Court of New Jersey by Governor Christie. In that circumstance, the shoe was on the other foot, with a Republican Governor and a Democratic State Senate. So there’s no hypocrisy here. The same principle applies now, with a Democrat in the White House and Republicans controlling the United States Senate. The sitting president, of whichever party, is constitutionally entitled, and required, to nominate a candidate to fill a vacancy on the Supreme Court. Republicans of integrity, such as retired Justice Sandra Day O’Connor, have agreed.
Newspapers in both blue states and red states have urged the Senate to “do your job.” The Senate should do just that.