A Supreme Court without Scalia
The news of Justice Antonin Scalia’s death was barely an hour old when Senate Majority Leader Mitch McConnell declared that President Barack Obama should not appoint anyone to fill the vacancy on the Supreme Court.
McConnell’s action is jarring on at least two counts.
First, there’s the general churlishness of so quickly using an unexpected death to pick a political fight. While others were issuing statements of condolence, McConnell was angling for advantage.
Second, though McConnell is famous for directing partisan animus at Obama, asserting that the president somehow lacks authority to fill a Supreme Court vacancy is absurdly over the top even for McConnell.
McConnell disrespects not just Obama but also the Constitution, which assigns the president the duty of appointing Supreme Court justices.
McConnell’s statement said: “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.”
Well, guess what: We have a president. (Admittedly, a segment of Republicans have had a hard time accepting that.) The American people re-elected him by a substantial margin in 2012, and more than a fifth of his term (11 months) remains.
The federal court system, which is supposed to be above politics, does not run on the same timetable as federal elections. The high court, which has a docket of important cases awaiting its consideration, often splits 4-4. So having a ninth justice is essential to the court doing its job.
Despite all that, other Republicans, including presidential contenders Sens. Ted Cruz and Marco Rubio, are joining McConnell in saying Obama shouldn’t bother with a nomination.
What McConnell, who could lose control of the Senate in the November election, and the GOP presidential candidates want to avoid is having to take an up-or-down vote on a nominee or being seen by voters as slacking or too cowardly to hold confirmation hearings and a vote.
Their devotion to the Constitution is highly selective — also, highly guided by their own self-interest.
In his 29 years as a justice, Scalia was a proponent of “originalism,” meaning the court should interpret the Constitution exactly as the founders intended, not as the justices might apply the founders’ intent to modern society.
The Constitution most certainly says nothing about delaying a Supreme Court nomination until after an election. In fact, McConnell voted to confirm Justice Anthony Kennedy in Ronald Reagan’s last year as president. The average time from the nomination of a justice to a final Senate vote is 67 days.
Obama should get on with naming a nominee. McConnell should be embarrassed.