No matter whether it’s an election year, nominating Supreme Court justices is the president’s job.
Whether Reagan or Obama, Supreme Court nominations are the president’s to make.
When Justice Antonin Scalia passed away last week, he was the closest a man can come to being a jurisprudence rock star. He was the foremost advocate of the originalist theory of interpreting the U.S. Constitution, and through his sharp tongue, eminent quotability and uncompromising views, Scalia earned the love of his fans in the Federalist Society and respect throughout the legal field. Liberals had less admiration for a man who often relied on insults to argue that gay marriage was an existential threat to humanity and actual innocence was no roadblock to prison.
As a scholar and personality, Scalia is irreplaceable. But soon enough President Barack Obama will nominate a replacement and the Senate has a duty to provide its advice and consent. This means an up-ordown vote.
This doesn’t mean, however, Republicans have to roll over on any Obama choice. The Senate has sent U.S. Supreme Court nominees packing under Presidents Ronald Reagan, Richard Nixon and Lyndon Johnson. Harriet Miers stepped down from her nomination under President George W. Bush due to criticism of her limited legal career.
Each one of those moments was a mix of earnest critique and partisan gamesmanship, but the focus was kept on the candidates themselves.
That’s not what Republicans are doing today. U.S. Sen. Mitch McConnell, the Republican majority leader, has said that the Senate will block any consideration of a replacement for Scalia’s seat until there’s a new president. For those counting, Obama had 342 days left when Scalia passed away, and no modern Supreme Court confirmation process has lasted longer than 125 days. McConnell’s stance removes that curtain of political niceties and reveals the naked truth: Republicans would rather see a vacant court seat than any Obama pick.
Playing politics with presidential nominees is nothing new. Democrats and Republicans have gone tit-for-tat on lower court nominations dating back decades. But by blocking any candidate, the Republican leader of the Senate has escalated partisan gridlock to the highest levels of government.
It’s no surprise that Texas’ Sen. Ted Cruz has promised to filibuster Obama’s eventual nominee, whomever that may be. We encourage his senior colleague, Sen. John Cornyn, to remember what longtime conservative columnist James Kilpatrick wrote when liberals opposed President Reagan’s picks for the court.
“They should have elected Mondale. But they didn’t.”
There will be plenty of opportunities for the next Republican presidents to make their own appointments. But for now, the nation elected Obama.