Supreme Court Justice Antonin Scalia revered what he defined as the original intent of the Framers of the U.S. Constitution. The Republicans who control the Senate and seek their party’s nomination for president, not so much.
Justice Scalia’s unexpected death over the weekend created a vacancy on the nine-member high court. President Obama said he plans “in due time” to nominate a successor, whom the Senate would have the ability to confirm or reject. That is not only his right but also his responsibility: Among the presidential powers specifically enumerated in Article II, Section 2, of the Constitution is appointment of “judges of the Supreme Court.”
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But Republican obstructionists, notably Senate Majority Leader Mitch McConnell, assert that they are under no obligation to give the President’s candidate a fair hearing, much less an up-or-down vote. They assert that voters should have the opportunity to elect a new president who will select Justice Scalia’s replacement.
They choose to ignore that “the American people” twice elected Mr. Obama president, and that his tenure in the office has nearly 11 months to run. The GOP timetable likely would leave Justice Scalia’s seat empty for well over a year — and, in close cases, leave the high court unable to act decisively. Creating a crisis in one of the three branches of the federal government is too high a price to pay for partisan advantage.
Regrettably, Republican Sen. Rob Portman of Ohio, who is seeking re-election this year in a state that Mr. Obama won twice, has adopted his party’s indefensible line. On Monday, Senator Portman cited a non-binding “rule” that says the Senate should not confirm a justice during a presidential election year. But in 1988, the Democratic-controlled Senate confirmed Justice Anthony Kennedy during President Ronald Reagan’s final full year in office.
Similarly, GOP presidential candidates are demanding that Mr. Obama shirk his official duty. Gov. John Kasich, who touts his ability to bring members of both parties together, said this week he thought “it’d just be great if the President didn’t send somebody forward.” Mr. Kasich added that if he’s elected, he would nominate “a constitutionalist” to the high court.
This year, the Supreme Court is scheduled to produce opinions on cases that touch on a number of urgent national issues: immigration enforcement, abortion and birth control, congressional gerrymandering, the rights of public employees. If Justice Scalia’s seat remains vacant, the high court could deadlock 4-4 on many of these vital cases, issuing rulings that affirm lower-court decisions, but without a majority opinion to create national precedent.
It’s understandable that Republican senators would prefer not to face the prospect of losing the conservative majority on the Supreme Court that Justice Scalia did so much to propel. But imposing that ideological and partisan preference by refusing to do the jobs they were elected to do would be to the detriment of the country and the administration of justice.
President Reagan named Justice Scalia to the Supreme Court in 1986; the Senate took just three months to confirm him on a 98-0 vote. Several senators expressed reservations about his judicial ideology, but the Senate fulfilled its responsibility to consent to a well-qualified nominee proposed by the president.
If President Obama offers a fully qualified, mainstream nominee to the high court — and surely he has neither a reason to fail to do so, nor a lack of meritorious candidates — the Senate owes him the same courtesy now. If Senate Republicans fail to provide it, their contempt for the court will be clear. Their motives will be equally transparent to American voters, immediately and on Election Day.
First Published February 16, 2016, 5:00 a.m.
