As if the presidential primaries weren’t causing enough commotion, the passing of Supreme Court Justice Antonin Scalia on Saturday has stirred up a whole other realm of controversy in the American political sphere this week.
In almost the same breath as their expressions of remorse and regret at the loss of the 30-year SCOTUS justice, many Republican senators released statements implying that, should President Obama attempt to nominate another justice during his remaining time in office, they will do everything in their power to block any candidate he might present to the Senate, which is currently held by a Republican majority.
“The American people should have a voice in the selection of their next Supreme Court Justice,” Mitch McConnell, a Republican Senator from Kentucky and the Majority Leader, said in a statement. “Therefore, this vacancy should not be filled until we have a new President.”
One could retort, as Senator Elizabeth Warren has, that the American people did have their voices appropriately heard during the 2012 election, in which President Obama was re-elected for a second term.
“Article II Section 2 of the Constitution says the President of the United States nominates justices to the Supreme Court, with the advice and consent of the Senate,” said Warren in a Facebook post on Sunday. “I can’t find a clause that says ‘…except when there’s a year left in the term of a Democratic President.’ Senate Republicans took an oath just like Senate Democrats did. Abandoning the duties they swore to uphold would threaten both the Constitution and our democracy itself. It would also prove that all the Republican talk about loving the Constitution is just that—empty talk.”
A few of those opposed to the idea of confirming a nominee chosen by Obama have grounded their argument in the fact that there is a precedent for waiting to name a candidate during an election year. Republican senator Chuck Grassley of Iowa, who chairs the Senate Judiciary Committee said, “It’s been standard practice over the last 80 years to not confirm Supreme Court nominees during a presidential election year.”
Admittedly President Obama’s remaining time in office is indeed (just) short of a year, with approximately 340 days left before the new president is named on Jan. 20, 2017, but it doesn’t even matter because Grassley’s argument is still factually incorrect. Since the 1900s there have been nine justices that were nominated and confirmed during an election year, and at least four that were confirmed at approximately the same point—or later—in their respective years as we find ourselves in now.
Although few have come out and said it directly, there really is no hiding the fact that the true reason Republicans are opposed to the idea of President Obama nominating a candidate is because they are afraid that he will choose someone who will be likely to support what is commonly called “the liberal agenda” and weight the political balance of the Justices of the SCOTUS in a more liberal direction.
While there are so many responses to this most recent bout of ridiculous political behavior, few are likely to penetrate the thick smog of misinformation and willful ignorance that seems to shroud so many (Republican) politicians these days, and even fewer are appropriate to publish in a publicly consumed newspaper.
However, the words of one man seem to speak perfectly to this current situation with a tone of reason and eloquence that is hard to find elsewhere.
In a 1971 edition of the Kentucky Law Journal (volume 58), the Chief Legislative Assistant to Marlow W. Cook—a U.S. Senator from Kentucky—wrote a 28-page article which suggests five guidelines that the Senate should follow when considering Supreme Court nominees.
In the conclusion of the article, this man wrote, “the Senate should discount the philosophy of the nominee…. Political and philosophical considerations were often a factor in the nineteenth century … but this is not proper and tends to degrade the court and dilute the constitutionally proper authority of the Executive in this area. The President is presumably elected by the people to carry out a program and altering the ideological directions of the Supreme Court would seem to be a perfectly legitimate part of a Presidential platform. To that end, the Constitution gives to him the power to nominate…. The proper role of the Senate is to advise and consent to the particular nomination, and thus, as the constitution puts it, ‘to appoint.’ This taken within the context of modern times should mean an examination only into the qualifications of the President’s nominee.”
Thirty years later, the same man—having moved up to becoming a U.S. Senator himself—reiterated these beliefs in a press conference, saying, “any President’s judicial nominees should receive careful consideration…. It’s time to move away from advise and obstruct and get back to advise and consent…. The Constitution of the United States is at stake. Article II, Section 2 clearly provides that the President, and the President alone, nominates judges. The Senate is empowered to give advice and consent.”
The man who spoke such inspiring words is none other than one Senator of Kentucky, Mitch McConnell. Yes, the man who is arguably the instigator of this entire debacle is the same man who, as recently as 2005, was so eloquently reminding the world of the Senate’s sworn duty to uphold the Constitution and support the President in appointing a SCOTUS judge.
Even though it is almost too perfectly ironic to be true, the most fitting end to this editorial can be found in the last few lines of McConnell’s 1971 article.
He wrote: “In conclusion … it will always be difficult to obtain a fair and impartial judgment from such an inevitably political body as the United States Senate. However, it is suggested that the true measure of a statesman may well be the ability to rise above partisan political considerations to objectively pass upon another aspiring human being. While the author retains no great optimism for their future usage, these guidelines are now, nevertheless, left behind, a fitting epilogue…”
Apparently, his lack of optimism in the Senate’s ability (or even the ability of one Senator in particular) to “rise above partisan political considerations” was even more justified than he ever could have predicted.