On Feb. 13, conservative Justice Antonin Scalia died, leaving a vacancy in the Supreme Court with roughly 11 months left in Barack Obama’s presidency. According to Politico, within hours of Justice Scalia’s passing, Senate Majority Leader Mitch McConnell stated his belief that Obama should let the next president nominate a justice and that he will not hold a Senate vote under any circumstance. Numerous other Republican senators and all of the Republican presidential candidates took this stance, setting the stage for a highly partisan and politicized battle.
By refusing to hold a hearing and vote, Senate Republicans are refusing to carry out their constitutional duty. Section 2, Article II of our Constitution states, “He [the president] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur; 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, and all other Officers of the United States.” There is no subsection dealing with an election year. It is very clear that the president’s job is to appoint, and the Senate’s job is to confirm or deny the nominee by holding a vote.
I find it hypocritical that Republican leaders would take this stance as they continually claim they are the party of strict constitutional interpretation. Rubio, for example, said during the CBS News debate Feb. 13, “The Constitution was not there to be interpreted based on the fads of the moment, but it was there to be interpreted according to its original meaning.” By refusing to hold a vote, the Republicans are essentially interpreting the Constitution “based on the fads of the moment.”
When Sen. Ted Cruz was asked why he wouldn’t consider voting on a nominee until after the election, during that same CBS News debate he said, “We have 80 years of precedent of not confirming Supreme Court justices in an election year.” This is simply untrue, because in 1988, President Ronald Reagan’s eighth year in office and an election year, Justice Anthony Kennedy was confirmed unanimously by a Senate controlled by Democrats. Also, according to Barbara Perry, a professor at the University of Virginia and a former Supreme Court fellow, 21 justices have been appointed by 14 different presidents during election years. Six of those presidents filled Supreme Court seats after their successors were already elected.
The other common excuse Senate Republicans use to justify why they won’t do their job is this idea of waiting until after the general election and letting the American people decide on the next justice. Quite frankly, the American people already have. In 2012, Obama was reelected after he won the general election by almost 5 million more popular votes and 126 more electoral votes. America elected him to be president until Jan. 20, 2017.
The Supreme Court is the most important part of our judicial branch, an integral part of our government and its system of checks and balances. It has the power to deem laws constitutional or unconstitutional. We cannot have it incomplete for an entire year, if not longer. An even number of justices means split decisions and gridlock. This has already become a problem, and it hasn’t even been seven weeks since Scalia passed away. Two important cases, one regarding unions and another regarding contraceptive coverage, are both split 4-4, which most likely means the lower court’s ruling will stand.
Senate Republicans would be wise to hold a hearing because, according to the Pew Research Center, a majority of Americans want them to vote on Obama’s nominee. In addition, Real Clear Politics, a website that tracks national polling, shows that Hillary Clinton is up 10.6 percent on average against Donald Trump in the last seven general election polls. In fact, in the last 20 national polls posted, Trump has only been ahead in two of them and only by two or three points, which is within the margin of error. They haven’t won their parties’ nomination yet, but they are certainly the favorites, as they have each amassed huge delegate leads.
Obama’s nominee, Merrick Garland, is considered a moderate by almost everyone in the judicial world and previously was confirmed by a Republican-controlled Senate in 1997 to the D.C. Court of Appeals with support from 32 Senate Republicans, some of whom are still in the Senate. If the Republicans don’t hold a vote and Clinton wins the election, she will have four years to push through a much more liberal justice. This may be the only chance Republicans have to replace Scalia with a moderate justice.
