Associate Justice of the Supreme Court of the United States Antonin Scalia is dead. When the San Antonio Express-News broke the story of Scalia’s death this past Saturday, it was met with a certain amount of macabre glee only by those on the left who could afford to be seen celebrating. That is, those whose greatest contributions to the debate are tweets or comments on reddit. Most policymakers and pundits praised Scalia’s intellect and keen legal mind, while expressing sympathy for his family. It was an appropriate and typical set of reactions from the politicians who represent liberal America.
Meanwhile, the response from the right has been typical of them, as well. But only insofar as it is another indication that the Republican Party has lost its ability to govern effectively.
Mere hours after Justice Scalia’s body was found at a ranch in Texas, and only an hour after the news was released, Senate Majority Leader Mitch McConnell released a statement that read, “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.”
On ABC’s This Week, in an interview with Senator Marco Rubio, George Stephanopoulos asked, “[Senator Ted Cruz] said earlier this morning that he would filibuster any choice that Obama made [to fill Scalia’s seat]. Are you taking the same position?”
To which Rubio responded, “Yes, but he won’t have to because, uh, Mitch McConnell has already made it very clear that we’re not going to move forward until there is an election. And I think that’s the right decision. The court can function with eight justices. In the last year, within the last few months of the president’s term, we should not be appointing Supreme Court justices.”
Stephanopoulos followed up with, “So if you’re elected president, will you promise not to make an appointment in your final year?”
The look on Rubio’s face after Stephanopoulos asked that question betrayed the shallowness of the Republican Party’s argument. He was flustered for a moment. Rubio had not expected such a rejoinder. Indeed, he appeared as if he or his people never considered that their position could be turned around on them in such a quick and concise fashion. But no one should be surprised.
Denying President Obama a pick to replace Justice Scalia is not born from any concern that the will of the people would be denied. Rubio’s ‘few months,’ in fact, is more than eleven months. Only in political calculus could ‘a few’ be the same as ‘eleven.’
What this represents, rather, is the culmination of the anti-Obama obstructionism that has infected the Republican Party ever since Obama was inaugurated in 2009. It does not matter what proposals the president puts forth, nor does it matter what Constitutional responsibilities he tries to fulfill. The aim of the GOP during this administration has been to try and block everything. It has been said before but it bears repeating: no president has ever faced the amount of obstruction from the other party as this president.
It is the president’s responsibility to fill vacancies on the Supreme Court whenever they occur, whether that is on the first day of a term or the last. The opposition party has no cause to deny a president duties that are spelled out quite clearly in the Constitution. There is no nuance. Article II, Section 2, Clause 2 states, “[The president] shall nominate, and, by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the [S]upreme Court, and all other Officers of the United States...” There is nothing in that clause regarding the timeframe within a president’s term in which those appointments are restricted.
There is an argument to be made that McConnell is operating within the bounds of the Constitution when he vows to deny the Advice and Consent, but he is on much shakier legal ground in that regard. It has generally been held that consent from the Senate is only withheld when the nominee put forward by the president is unfit for the office to which they have been appointed. Only occasionally has such consent been denied the president.
Of the last twenty nominations to the Supreme Court by seven different presidents, only four were withdrawn or rejected.
But, of course, for the Republicans, this is not about Constitutional duties. It is about the balance of the Supreme Court in an era of extreme political polarization. Scalia was a reliable conservative vote on the Court, instrumental in blocking liberal pursuits. The current 5-4 conservative slant of the court will shift to a liberal slant if Obama gets a nominee through, and the GOP cannot abide that. But, elections have consequences.
President Obama has said he intends to name a replacement for Scalia shortly. He has not abrogated his responsibility as president. The Senate of the United States should not abrogate theirs.