Hardly had the stunning news of Supreme Court Justice Antonin Scalia’s death become public before Sen. Mitch McConnell, the Republican leader of the Senate, unilaterally declared that his replacement should be nominated by President Obama’s successor.
Think about that for a moment: Justice Scalia had just died, yet already the majority leader from Kentucky had declared that the Senate did not want to fulfill its constitutional duty to vote on a nominee for the highest court in the land this year.
There is no point in decrying the politicization of the judicial system in recent times. That ship sailed long ago. But it’s one thing for lawmakers explicitly tasked by the Constitution to offer “advice and consent” to nominees for “judges of the Supreme Court” (Art. II, Sec. 2) to decide against someone for any reason, or none at all — and quite another to say they’re not disposed to consider anyone named by the sitting president.
Among other things, this represents an act of disrespect to Justice Scalia. His tenure on the court was one of the most consequential in modern times. He was indeed a polarizing figure. But Justice Scalia repeatedly rejected the characterization of himself as a political actor. He was an arbiter of the judicial system, as he saw it, merely applying the law as the Constitution demanded.
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Yet upon his death, Republicans rushed to turn him into a partisan figure, someone who somehow belonged not to an institution of government but rather to one of the political parties whose leaders demand that a president whose politics they despise stay out of the replacement process. This position insults the president, the court, Justice Scalia, the political process — and, most of all, the Senate itself.
Fortunately, Mr. Obama is not inclined to abandon his constitutional duty. It’s his job to nominate a successor, and he rightly says that he will do so at the appropriate time. No doubt political calculations will enter into the selection. Democrats are already debating whether he should name a moderate who stands a chance of approval or a liberal who becomes a political martyr, thus energizing the party’s base in an election year.
Whatever happened to just finding the best person?
Mr. Obama would do the country a favor by forgoing political considerations. The criteria should include significant experience in the law, a reputation for excellence within the legal profession and proper judicial temperament — politics aside. Surely there are sitting judges and eminent legal figures in America who fit that description, without regard to political labels.
Mr. McConnell’s rush to deny the president’s right to nominate a replacement gives the lie to his claim that Republicans are not obstructionists, that they can manage the Senate responsibly. Without considering a replacement this year, political objection becomes pure obstructionism. It also obstructs the work of the Supreme Court, which can be expected to produce 4-4 tie votes in the absence of a ninth justice, probably for two terms if no one is approved this year. How is this good for the country?
There is ample precedent for approving a new justice in the last year of a presidency. It happened in 1988 with the nomination of Justice Anthony Kennedy by Ronald Reagan. But there is no precedent for the Senate forfeiting its duty. The Senate’s failure to act would not only display contempt for President Obama, but also for the nation.