In normal times, such as those when an Italian American named Antonin Scalia can be unanimously confirmed by a 98-0 vote, I would have more time to write posts examining Scalia’s life, jurisprudential impact, and judicial legacy. These are not normal times. In the hours after Scalia’s death during a hunting vacation in Texas, the internet was aflood, not with retrospectives on the recently passed justice, but on prospective analysis about who would replace him.
To some extent the interest is understandable. After all, the ideological makeup of the Supreme Court (at its most basic) is now four conservatives and four liberals, a state of affairs that will unavoidably lead to deadlocked results in the coming term (which, if you’re wondering, means the lower court’s decision stands). That, in turn, means that the chosen justice could shift the balance of power on the Court in one direction or another for the foreseeable future. Which is to say that the stakes are high, and made higher by the fact that President Obama, the lamest of lame ducks, is in the last year of his term, and a contentious election is on the horizon.
So what to do?
According to the Constitution that Scalia loved and defended, the president has the absolute right to nominate a new justice to the Supreme Court. Undoubtedly, Obama, knowing that this may be his last, best chance to leave a lasting policy impact, will opt for someone who is diametrically opposed to the textual philosophy of Scalia. Putting forward a name, especially an unacceptably liberal one, allows the Democrat nominee for president to paint Senate Republicans as obstructionist gadflies with no interest in governance.
But that same Constitution also requires the president to seek the “advice and consent of the Senate,” which imbues them with the power to reject or hold a nomination. Should they opt for this course, Republicans can rightfully argue that elections matter, that voters overwhelmingly opted for GOP-led governance two years ago, and that to buck this tide with another ostensible referendum just months away is to ignore the will of the people.
Oddly enough, it was Sen. Chuck Schumer, who has been proactively trying to paint Senate Republicans as obstructionists, who most loudly espoused the Senate’s prerogative.
“[F]or the rest of this president’s term and if there is another Republican elected with the same selection criteria let me say this: We should reverse the presumption of confirmation. The Supreme Court is dangerously out of balance,” Schumer said in 2007, President Bush’s last year in office. “. . . I will recommend to my colleagues that we should not confirm a Supreme Court nominee except in extraordinary circumstances.”
Although I wholeheartedly disagree with Schumer’s distasteful opinion that ideological balance should play a definitive role in the confirmation of Supreme Court justices regardless of when the vacancy takes place, it is fair to recognize that nominating and confirming a justice during a presidential election year rarely occurs.
Indeed the last election-year nomination and confirmation was way back in 1940, when President Franklin Roosevelt nominated Frank Murphy, who was confirmed 12 days later by a Democrat majority in the Senate. You have to go all the way back to 1880 to find a nominee (William Burnham Woods) who was confirmed in a divided government.
But tradition, happenstance or common practice may not be nearly as important as how much the entire process has been politicized in recent years. Shannen Coffin writes for National Review:
Beginning largely with [Robert] Bork, Democrats have shamelessly politicized the confirmation process in the last several decades. More recently, they changed longstanding Senate rules for the sole purpose of packing the D.C. Circuit (viewed by most as the most important appellate court short of the Supreme Court) with Obama appointees. That after blocking highly qualified Republican nominees for those same seats during the Bush administration. . .
Democrats have viewed their role in the confirmation process as an exercise in raw political power. Their complaints that the American people should not be trusted to decide who should fill this vacancy as part of the presidential election ring hollow.
There is no doubt that it’s a sad state of affairs, but this is not the time and place to unilaterally disarm. As Jonah Goldberg writes:
When Robert Bork was defenestrated by Joe Biden, despite Biden’s having said he would have no choice but to vote for someone so well-qualified, he was setting the table for payback. When Harry Reid pulled the trigger on the nuclear option (on lower court appointments) he was warned that this would come back to haunt him. When Democrats disgustingly blocked Miguel Estrada from the bench solely because he was a Hispanic, they set the table to be turned. When Barack Obama voted to filibuster Alito, he set the table to be turned.
If anything, it’s time to recognize that turning the selection of judges into a political process has consequences. Namely, that it should be decided through the ultimate political means: the election of a president.
Photo Credit: Phil Roeder