The unexpected death of Justice Antonin Scalia has thrown the U.S. political system into chaos. But from a constitutional perspective, how President Obama and members of the Senate should proceed is simple. They should do their jobs.
Article II of the United States Constitution lays out the duties, powers and responsibilities of the president. In Section 2 it says that the president “ ... shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the Supreme Court. ... ” It says “shall,” not “may,” “can” or “probably ought to.” And there are no exceptions. Just “shall.”
Nonetheless, the Republican leaders of the Senate have been saying that if the president nominates a successor to Scalia, they will not act to confirm or deny any nominee until next year. Some have said no nominee should be confirmed in an election year or in a president’s last year, but that is neither law nor tradition. Justice Anthony Kennedy was confirmed in 1988 – Ronald Reagan’s last year in office and an election year.
If senators do not like whomever Obama nominates, they can vote no. To refuse to participate, however, is wrong and unconstitutional.
The excuse is that the American people should have a chance to weigh in on the direction the court should take. But the people have had chances to affect the makeup of the Supreme Court. And they twice elected Obama.
Clearly this is politics. But besides flying in the face of the clear language of the Constitution it risks serious consequences.
For starters, the court now has eight justices and a four-four tie is treated as if nothing happened. The lower court’s opinion stands and no precedent is set.
This year’s docket includes cases dealing with abortion, contraception, redistricting and immigration. The parties to those cases deserve justice. They do not deserve to be treated as political pawns.
It is also unlikely all those cases will turn out how Republican leaders might want. One case in particular involves whether public-sector unions can continue to require workers who do not want to join the union to pay dues nonetheless. The high court had seemed ready to end that practice, but the lower court took the unions’ side and a tie will let that stand.
Refusing to consider a nominee could backfire politically as well. One scenario has Obama nominating a Hispanic woman and let those two groups watch how the GOP treats her from now until November.
Republican leaders seem to presume victory this fall, but their knee-jerk obstructionism is already being used against GOP candidates in Senate races around the country, apparently to good effect. And in this cycle, Republicans hold more of the at-risk Senate seats than do Democrats.
When he thought the Senate slow to act on a confirmation, President Ronald Reagan said, “Every day that passes with a Supreme Court below full strength impairs the people’s business in that crucially important body.”
If the voters agree, the Democrats could take back the Senate. Then, with the wind at her back, President Clinton could nominate Barack Obama to fill Scalia’s seat.
Or the Senate just do its job and let the president do his.