Before Antonin Scalia’s ghost even had a chance to haunt its first homosexual, Senate Republicans had already decided on his replacement on the U.S. Supreme Court: no one.
That decision should be left to “the next president,” Senate Majority Leader Mitch McConnell and a bunch of other Republicans declared, even though the next president won’t take office for eleven months.
On Saturday night, mere hours after we learned that Scalia had shuffled off his mortal coil, North Carolina Senator Richard Burr jumped on the bandwagon: “The American people deserve a say,” he tweeted. “The Supreme Court vacancy should not be filled until there is a new President.”
By Monday, the state’s junior senator, Thom Tillis, had joined in. Blaming President Obama’s “utter contempt for our nation’s system of checks and balances,” he argued that “the process of filling the Supreme Court vacancy would be best left to the next President.”
Sit down, senators, and let us ‘splain some things to you.
For starters, we agree: the people do deserve a say. And they had itfour years ago, when Mitt Romney pitched his case that he, and not President Obama, should be able to make Supreme Court appointments until January 2017.
The voters, you may recall, went nah.
Moreover, the suggestion that a president in his last year lacks the legitimacy to carry out basic constitutional functions is specious at best. It certainly lacks precedent. In 1988, a Democratic Congress unanimously confirmed President Reagan’s choice of Anthony Kennedy for the high court. In fact, since 1900, six Supreme Court justices have been confirmed in an election year. And don’t say there’s no time, either. As The New York Times pointed out, the Senate has never taken more than 125 days to vote on a Supreme Court nominee; there are currently just under 340 days left in Obama’s term.
Now, senators, that doesn’t mean you have to approve whoever the president picks. But a blanket refusal to even consider the president’s nominee is, politically speaking, remarkably shortsighted.
Take your own reelection, Senator Burr. You’re an odds-on favorite. Unless, that is, something happens that reactivates the coalition of young and minority voters that Obama rode to victory in North Carolina in 2008. Rejecting a qualifiedand probably nonwhitenominee, sight unseen, may just be that thing.
Raw obstruction, unmoored from any purpose besides sating a rabid base, won’t play well in November. And not just here, but also in several blue-leaning states where Republicans are seeking re-election: Pennsylvania, Wisconsin, Illinois, New Hampshire, and Ohio.
Which brings up our next point: this is quite the gamble, like going all-in on a pair of nines. You’re betting on winning both the Senate and the White House, but it’s just as likely that you’ll have a Democratic Senate and a Democratic White House, and President Clinton (or Sanders) will get to appoint whoever she (or he) deems fit. So why chance it, when you can force the president to put forward someone you find at least somewhat acceptable?
But, really, those things shouldn’t matter. What should matter is that the president is still the president, and it’s still his job to fill judicial vacancies. It’s your job to offer advice and consent.
Do your job, senators.
