Supreme Court Justice Antonin Scalia passed away in January, a little less than three months ago. Pretty much immediately, Senator Chuck Grassley R-IA (Chair of the Senate Judiciary Committee) and Senator Mitch Mcconnell R-KY (Senate Majority Leader) announced that they would absolutely refuse to consider any nominee that President Obama puts forth. So far they are holding to that stance.
The reasons are various, but the primary point publicly given is that the people should decide the President that nominates Supreme Court Justices. Here is an excerpt of Senator Grassley’s reasoning…
Our system of government was designed to be of the people, by the people and for the people. To protect the God-given natural rights of each citizen and preserve our liberty, the U.S. Constitution was specifically designed to limit governmental power. That’s why we have checks and balances to keep any one of the co-equal branches from overreaching. It’s why we have elections. And it’s why we have robust public debates ahead of those elections to determine who best can lead our country and make lasting decisions like nominating Supreme Court justices.
Senator Grassley, unless I’m mistaken, we had a Presidential election in 2012 and we made our choice at that time, believing our choice would be valid until January, 2017. I’m sorry that Justice Scalia had the bad manners to die at an inconvenient time, but stuff happens. Do your job!
A second justification that Grassley, McConnell, et al, give is precedent (all from the link above on Senator Grassley’s website)…
- then-Senate Judiciary Committee Chairman Joe Biden, lectured in 1992 that “the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.” (The so-called “Biden Rule”, RadCen)
- In 2005, then-Senate Majority Leader Harry Reid, a Democrat, stated, “Nowhere in that document [the Constitution] does it say the Senate has a duty to give presidential nominees a vote.”
- In 2007, a year and a half before the end of George W. Bush’s tenure as president, Senator Chuck Schumer, heir apparent as Senate Democratic Leader, proclaimed the Senate “should not confirm a Supreme Court nominee except in extraordinary circumstances.”
All of this is true. These people really did say these things. Problem is, this is cherry-picking and lying-by-omission of the worst kind. Note these facts that Senator Grassley conveniently omitted…
- According to the New York Times, the Senate has considered Supreme Court nominees eight times since 1900. Also, no confirmation vote (up or down) has ever taken more than 125 days. There were 342 days remaining in President Obama’s term when Scalia died. There’s plenty of time… still even today as I write this.
- On Feb. 3, 1988, McConnell and literally every other GOP senator voted to confirm Supreme Court Justice Anthony Kennedy. This was during President Ronald Reagan’s last year in the White House, and at a time when Democrats controlled the Senate. Kennedy was confirmed 97-0, with three Democrats — Joe Biden, Al Gore and Paul Simon — not voting at all because, presumably, they were busy running for president that year.
Grassley, too, voted to confirm Kennedy under Reagan.
RadCen Note: To be fair, this was the third nominee for this slot, the first two failed, and Kennedy was nominated in December 1987, but the fact remains that the confirmation vote took place in Reagan’s last year. Note, also, that that Senate was a Democratic controlled Senate.
- In Michael Gerhardt’s blog, Getting the Senate’s responsibilities on Supreme Court nominations right, he sums up with…There is, in short, no historical support for the claim that the Senate has a tradition of shutting down the Supreme Court appointment process in presidential election years. The tradition is the opposite, for the Senate to consider Supreme Court nominations, no matter the timing, and actually to confirm nominees when they are moderate and well qualified.
It is, however, worth remembering that our past does not bind us. The past illuminates what is constitutionally permissible but not what should be done. Past choices are not constitutional rules. Our leaders still must take responsibility for their own decisions, rather than pass them off on their predecessors, and the public’s job is to hold them responsible. In doing that job, we should keep in mind Daniel Patrick Moynihan’s admonition, “You are entitled to your opinion. But you are not entitled to your own facts.” The facts about Supreme Court appointments are easy to find; our leaders don’t need to make them up.
Hence, there is no precedent. History is all over the map. It is precisely that there is no precedent that the Senate should suck it up and do their job and hold a hearing. The GOP is merely stalling and posturing in the hopes… gambling, if you will… that the next President will be a Republican and nominate a candidate more to their liking. I believe they’re going to be severely disappointed, but more on that below.
Now, don’t mistake this to mean that they should be obligated to approve any candidate put before them. If the candidate is truly unworthy, vote against the nomination… but just vote. They’re not serving the people with this behavior.
- Senator Grassley has a television ad out right now that talks about this. To paraphrase part of it, the GOP is justified because President Obama might appoint a liberal justice. And that’s really the crux of the whole issue, isn’t it? We can’t have another liberal justice.
- Relating to #1, the GOP’s gamble will probably fail, and fail dramatically. If either Ted Cruz or Donald Trump is the GOP nominee for President, we will end up with President Hillary Clinton (just a prediction, not my preference). If so, not only will they NOT get what they want with this seat, but given the ages of several of the remaining justices, it is likely that the next President will get two more nominations… which will mean three total. The GOP has a legitimate chance to get something close to what they want right now, and they’re going to blow it.
- I believe the GOP could play this to their advantage. If the guy is even remotely acceptable, suck it up and go with it and shut the naysayers the up who complain the GOP is always obstructionist. This could be spun into a major positive attribute for the GOP. Like it or not, the GOP doesn’t have the numbers in staunch supporters they need/want, so they still need to appeal to the swing voter as well. That’s who they need to convince
One more thing: There’s always an exception, isn’t there? Yes, I do feel that the Senate should hold hearings and give the nominee an honest chance. But, the only exception I would make to that rule would be if the sitting justice were to die between the general election and the inauguration. That would be a reasonable time to wait until the President-elect has been sworn in. But that’s not the case here.