Antonin Scalia was one of the most influential and consequential justices in the history of the U.S. Supreme Court. Appointed by President Ronald Reagan in 1986, he was the intellectual anchor for today's conservative movement. His sudden death was a shock to all Americans, especially Republicans, who immediately assumed their battle positions.
The U.S. Constitution specifies
(Article II, Section 2) that the president, "shall nominate, and by
and with the Advice and Consent of the Senate, shall appoint
Ambassadors, other public Ministers and Consuls, Judges of the supreme
Court, and all other Officers of the United States, whose Appointments
are not herein otherwise provided for, and which shall be established by
Law." Certainly a strict constitutional originalist like Scalia would
have agreed that a president with eleven months left in office has the
right to nominate someone for the Supreme Court.
Shortly after word of Scalia's death, Senate Majority Leader Mitch McConnell, who decides what the Senate takes up, said in a statement
that President Barack Obama should not nominate a replacement. "The
American people should have a voice in the selection of their next
Supreme Court Justice," he said. "Therefore, this vacancy should not be
filled until we have a new President."
This unprecedented message was followed by similar warnings from
Republican presidential candidates. Texas Senator Ted Cruz took to
"Justice Scalia was an American hero. We owe it to him, & the
Nation, for the Senate to ensure that the next President names his
replacement." Florida Senator Marco Rubio also said Obama should not
nominate a replacement. "The next president must nominate a justice who
will continue Justice Scalia's unwavering belief in the founding
principles that we hold dear," he said in a statement.
Justice Scalia's death dominated the early portion of Saturday's
Republican debate in South Carolina. Minutes before the debate, which
aired on CBS, President Obama expressed his condolences to Scalia's
family while praising the jurist's "remarkable" life. Then the
"I plan to fulfill my constitutional responsibilities to nominate a
successor in -- due time." He continued, "There will be plenty of time
for me to do so, and for the Senate to fulfill its responsibility to
give that person a fair hearing and a timely vote."
The president's comments were fuel for an over-heated and feisty debate atmosphere. Donald Trump warned
Senate Republicans to "delay, delay, delay." Cruz said that, "the
Senate needs to stand strong and say we're not going to give up the
Supreme Court for a generation." Former Florida Governor Jeb Bush
called for a "consensus pick," which would be almost impossible to find
with a deeply divided Congress.
Republicans feel they own the Scalia court position. Their comments
and actions are consistent with the partisan war they have been waging
in Washington from the day President Obama was first sworn in to office.
For nearly eight years now the first instinct for Republicans in
Congress has been to obstruct, block and divide. This, no doubt, plays
well with certain segments of the Republican Party. But such tactics
have demoralized much of the electorate and have probably led to the
rise of Donald Trump.
Why didn't McConnell simply say that should the president offer a
nomination, as is his right under the Constitution, the Senate would
take it up? After all, the same American people who McConnell says
should have a voice twice overwhelmingly reelected President Obama to
office. Furthermore, the Constitution does not say the president shall
appoint unless he has less than a year left in office.
Republicans would be far wiser to agree to let the process take its
course and then focus their attention on defeating the president's
nominee in the Senate. This is what the Founding Fathers had in mind
when they wrote the rules.
What an appropriate way this would be for Republicans to remember the
man who they consider to be the greatest defender of the U.S.