Toe the Line: Penn Democrats | Justice Scalia's Replacement Should Get a Timely Hearing

Senate Republicans should fulfill their Constitutional obligation and vote on President Obama's nominee.

By Luke Hoban 02/24/16 11:39pm

The sudden death of Justice Antonin Scalia on Feb. 13 almost immediately became a dominant news story in American politics. Within hours of Justice Scalia’s death, Senate Majority Leader Mitch McConnell stated that “this vacancy should not be filled until we have a new president.” On Tuesday, McConnell affirmed that any person that President Obama nominates will not even get a hearing in the Senate.

To say this even before a nominee has been announced is a new obstructionist low from Senate Republicans. Barack Obama should nominate a replacement, and the Senate should hold confirmation hearings in a timely manner. We should have a national debate about the merits of the president’s nominee, not about whether or not the Senate should fulfill its constitutional obligations.

If Republicans truly want to adhere to an originalist view of the Constitution, they ought to at least hold a hearing on President Obama’s nominee. To do otherwise would be in direct contradiction with their originalist mantra.

The Constitution of the United States does not cease to apply in the last year of a president’s tenure. The appointment of a justice should not be prevented on the grounds that it is an election year. Article II, section 2 of the Constitution says that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the supreme Court.” This is not an ambiguous statement.

As Sen. Elizabeth Warren noted, there is no qualifier here that reads ” ... except when there’s a year left in the term of a Democratic president.” To disregard what the Constitution unequivocally states on this topic is a blatantly partisan attempt to undermine both the presidency and the judiciary.

Republicans would point to Abe Fortas’ failed 1968 nomination to contradict this, and the so-called “Thurmond Rule.” They have already pointed to Joe Biden’s comments from 1992 arguing that a potential vacancy on the Supreme Court should not be filled until the next president was sworn in. However, Fortas’ nomination and Biden’s comments both occurred during the summer months of an election year; the Thurmond rule also only applies during this time frame. A more representative precedent was set when President Ronald Reagan nominated Anthony Kennedy in the final year of his second term, and he was confirmed by the Senate 97-0. Again, this is not surprising, given the uncontroversial meaning of Article II, section 2.

One of the most frequently cited reasons for delaying the appointment of the next Supreme Court justice is that the American people ought to have a say in the matter. However, this is a flawed, ahistorical rationale. The American people already have had our say. We elected Barack Obama in 2008 and again in 2012 — with full knowledge that he might have the opportunity to nominate Supreme Court justices. In fact, President Obama appointed not one but two justices during his first term, and the American people overwhelmingly chose to re-elect him. That’s one of the most fundamental roles of the president and Congress. It’s not a radical idea found in some hidden constitutional clause that Nicolas Cage discovered written in invisible ink. It’s a well-established democratic precedent. To disregard the will of the American people from the 2012 election because it is politically expedient is shameful.

More pragmatically, with Justice Scalia’s death, the Supreme Court is split at 4-4 between generally conservative and generally liberal justices. This means that it will likely not be able to issue rulings on many crucial cases coming up if a new justice is not appointed. Instead, lower court rulings would stand, but without a national precedent. Public sector unions, immigration rights, a woman’s right to choose and affirmative action are just a few of the topics with pending decisions that could face a 4-4 tie and receive this treatment.

Without a nationally consistent ruling, many of these subjects would likely appear before the Court again over the next few years, wasting judicial resources. These issues — whatever your position on them may be — are some of the most pressing of our time. By refusing to even hold hearings for President Obama’s nominee, Senate Republicans are impairing the right of the American people to have a functional court system interpreting laws.

This Congress has been riddled with obstructionism, and it has been one of the most dysfunctional Congresses in American history. In its last year in session, that can change. By holding hearings on President Obama’s nominee to the Supreme Court, Senate Republicans can accomplish two fundamental goals. They can honor the roles of the president and Congress as plainly written in the Constitution, and they can move the court closer to fulfilling its responsibility in a year with critical issues on the docket.

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