The Senate is not a rubber stamp

The Constitution grants the president the authority to nominate his choice to fill a Supreme Court vacancy — a power President Obama exercised by nominating Judge Merrick Garland. But the Constitution also gives the Senate a co-equal role with the power to provide advice and consent. The best way to exercise our power is to conduct the confirmation process after the presidential election.

Holding hearings now would poison an already contentious confirmation process with the worst of election-year politics, resulting in harm to the integrity of the court. In years past, Democratic leaders — including Vice President Biden — have themselves warned against considering a Supreme Court nominee so late before an election. By so doing, we can also give the American people a voice in the direction of our nation’s highest court after their split decision in electing a Democratic president and a Republican Senate with very different views of the law and the Constitution.

The right way to handle the Scalia vacancy is to defer the confirmation process. Thankfully, that will not undermine the court’s work. Only a small percentage of the court’s cases are decided by a 5-4 margin, and only a fraction of those fall along predictable ideological lines. The court has had fewer than nine justices for extended periods before and has different options for doing its work under those circumstances. I believe Justices Stephen Breyer and Samuel Alito when they both say that the Scalia vacancy will not be unduly burdensome.

Rather than engaging Republicans with a meaningful counterargument, Democrats have responded with a meaningless catchphrase: “Do your job.” According to progressives, it seems that doing your job entails confirming whomever President Obama nominates to the Supreme Court, regardless of the circumstances.

The Senate is supposed to be more than a rubber stamp in the confirmation process. When I was elected to the Senate, I took an oath to “support and defend the Constitution.” In doing so, I intend to exercise responsibly the advice-and-consent power by keeping politics out of the judicial branch in a presidential election year.