Within hours of the death of Antonin Scalia, the hypocrisy was thick. While Republicans rushed to praise the late justice for his supposed allegiance to the letter of the Constitution and to its original intent, they also rushed to make clear that they themselves had no intention of abiding by either the letter or intent of that same document.
Article II of the Constitution makes clear that president is elected to a four-year term, and that the president “shall nominate, and by and with the advice and consent of the Senate, shall appoint … judges of the Supreme Court.” That language notwithstanding, Senate Majority Leader Mitch McConnell announced that the Senate would not allow that constitutional process to play out, and would refuse to act on a nominee to replace Scalia.
In his statement, McConnell made it quite clear that it doesn’t matter who that nominee might be, or how well-qualified he or she is by legal training, judicial temperament, intelligence or experience. He would not allow the Senate to offer its advice or consent, and by that refusal he would shut down the process that has stood this nation in good stead for well over two centuries.
As Amy Howe points out at Scotusblog, the history is clear. Six previous times since 1900, the Senate has done its duty by voting to confirm a Supreme Court nominee in a presidential election year. It has never even been a serious question. And as Domenico Montanaro of NPR reports, the longest wait from the moment a nominee was named until he or she received a Senate vote was 125 days, back in 1916.
As of today, Obama has 340 days left in his presidency. This is not October or November, with only a few remaining days in his term. This is the middle of February.
We all know what’s happening here. We know because we’ve seen it over and over again. We saw it a few days before Scalia’s death, when the House and Senate budget committees refused to even let the White House budget director present the president’s budget to Congress, as tradition and precedent require.
From the very beginning, McConnell and his fellow Republicans have refused to accept this president as legitimate. They have questioned his birthplace, they have questioned his loyalty and patriotism, they have whispered about his religion and parentage. They have treated him as some bizarre and temporary aberration to be obstructed at every turn rather than as the legitimate selection of the American people. Even Obama’s re-election by some five million votes — a re-election that they were certain could never happen — didn’t change their attitude toward him. This is merely an extension of that behavior.
It’s also important to point out what a big political gamble the Republicans are taking. They are defending 24 Senate seats this year, many in states won by Obama. The Democrats are defending only 10, and are favored in all 10. Voters in the purple states that will decide control of the Senate may not look kindly upon a party that refuses to let the chamber perform its basic constitutional duties for almost a year. Anybody wondering whom to blame for the Washington stalemate now has a pretty good answer.
Because the Senate won’t act, the president can’t fulfill his constitutional duty of filling a court vacancy. Because the Senate won’t act, leaving an evenly divided court, the judicial system will be compromised and important legal questions will go unanswered. McConnell’s decision harms the Senate as an institution, it harms the court, it harms the country and it may also harm his own party.
And the truth is, he is caught in a trap of his own making.
If Obama had reason to believe that his nominee would get a fair hearing, he would probably choose a moderate who at least had a chance of wooing enough Republican support to be confirmed. Two possibilities are Sri Srinivasan, an appellate judge confirmed three years ago with a unanimous Senate vote of 97-0, and Jane Kelly, an appellate judge confirmed by a 96-0 vote.
But if no vote is forthcoming this year, the dynamic changes. If a Democrat wins the White House in November, the new president won’t be nearly as accommodating in the choice of nominees, particularly since a Democratic presidential win would almost certainly produce a Democratic Senate as well. With their obstinance, Republicans could end up getting a new justice as far to the left as Scalia was to the right.
I’m sure that McConnell and his aides have thought about that, but they simply don’t have the freedom to think or act in such strategic terms. They are handcuffed by the extreme, irrational anti-Obama animus that he and other party leaders have created as a means to keep their voters loyal, an animus that makes it impossible to do the right thing, the smart thing, the constitutional thing.