The Balance of the Supreme Court
February 14, 2016 1 Comment
” […] and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, […]” Article 2, Section 2, Clause 2 of US Constitution
Word broke late on Friday of the death of Supreme Court justice Antonin Scalia. The death of the conservative justice during an election year is bound to have great ramifications.
Even before the Supreme Court had officially announced the passing of Justice Scalia, Senator Ted Cruz (R-TX) tweeted out that the next President gets to pick his replacement instead of President Obama.
Justice Scalia was an American hero. We owe it to him, & the Nation, for the Senate to ensure that the next President names his replacement.
— Ted Cruz (@tedcruz) February 13, 2016
When Republicans took control of the Senate last year, Senate Majority Leader Mitch McConnell (R-KY) stated that there would be few if any votes on any of Obama’s nominations still awaiting for the Senate’s confirmation with the exception of a Supreme Court vacancy. (The Senate did confirm a few State Department officials within the past week though.)
Now, however, Senate Majority Leader McConnell is talking differently as he states that the American people should have a voice in the next justice with the upcoming election.
— Leader McConnell (@SenateMajLdr) February 14, 2016
One has to wonder if Republicans would be singing the same tune if the President was a Republican instead of a Democrat. The Court is narrowly split and a new justice appointed by President Obama could shift it in the opposite direction.
In 2005, Senator McConnell defended the absolute right of a sitting President to nominate judges, stating, “The Constitution of the United States is at stake. Article II, Section 2 clearly provides that the President, and the President alone, nominates judges. The Senate is empowered to give advice and consent.”
Keep in mind that the next President will not be sworn in until January 2017, just under a year away. The longest confirmation hearing in modern times was Justice Clarence Thomas at 100-days. This would be triple the amount of time just to wait for a nomination let alone the confirmation hearing and a vote.
President Obama is within his constitutional right to put forth a nominee, and the Senate has the duty then to hold confirmation hearings and to hold a vote. It doesn’t matter if it’s an election year or not.
In January 1801, in the wake of the 1800 election, President John Adams nominated John Marshall to be Chief Justice. Marshall was confirmed by the Senate within a few days much to the chagrin of the incoming Jeffersonian Republican majority.
In 1987, President Reagan nominated Anthony Kennedy to fill a vacancy in the Supreme Court. Kennedy was confirmed in February 1988 (an election year) by a 97-0 vote in which Democrats held the majority in the Senate.
Senator Elizabeth Warren (D-MA) called out the hypocrisy of her GOP colleagues in refusing to even consider a nominee by President Obama. She went on to state that they all took the same oath and shouldn’t abandon their duties.
I can’t find a clause in the Constitution that says “…except when there’s a year left in the term of a Democratic President.”
— Elizabeth Warren (@SenWarren) February 14, 2016
President Obama has already stated that he will be making a nomination to fill Scalia’s seat as is his right to do so and names are already circulating. It will be up to the Senate to prove that it can perform its constitutional duties or whether they are willing to hold the third branch of government hostage to politics.
There is no doubt that Justice Scalia’s death brings the issue of Supreme Court nominations into the 2016 election. And though we are reminded of this issue in the most tragic of ways, it deserves more than just a partisan soundbite. The President and the Senate have a constitutional responsibility at this point, and they need to step it up.