Shortly after the report of the Associate Justice Antonin Scalia’s passing, politicos began to speculate as to whom the President might nominate for the appointment to replace the conservative stalwart. While perhaps there is a certain point of time which should elapse between the death of a person and the consideration of his replacement, this was understandable behavior because: 1) the passing of a sitting member on the nation’s highest court is relatively rare, 2) Article II of the Constitution is clear as to how a federal judge is to be nominated (by the President) and appointed (with “the Advice and Consent of the Senate”), and 3) Justice Scalia’s passing results in an ideologically split (4-4) Supreme Court. What followed, however, would surprise even the most cynical political animal (or at least a semi-cynical one). Before the President had even floated a name of a possible replacement to the bench, Mitch McConnell, the Senate Majority Leader indicated that there would be no vote on any Supreme Court nominee until after the current president’s final term. Full stop. Period. Done.
Now, McConnell is a consistent conservative Republican, and the leader of his party’s majority in the Senate. He is a seasoned political tactician who carefully crafts the message of his party in the Senate and often finds himself at odds with President Obama, a Democrat. Additionally, the U.S. Senate is under no constitutional obligation to approve a president’s nominee nor do senators have to take up a vote on a nominee. Furthermore, the notion that a president, in his final year of office, should not nominate a judicial candidate has been argued before by both major parties, at different times. Despite these facts, I was surprised to hear Senator McConnell speak so definitively on the subject.
To me, the prudent and risk-averse action would be for the Senate Republicans to allow a vote on a nominee—possibly limiting President Obama’s list of potential candidates to only moderate jurists who could possibly pass through a majority Republican Senate. If President Obama fails to provide a moderate candidate and instead favors a more staunchly liberal judge, the Senate can easily reject that individual and save face politically. The Majority Leader has the power. However, if Senate Republicans prohibit a vote, they are taking a significant risk on two fronts. First, they stand to frustrate the American public. Of the three branches of the national government, the judiciary is held in the highest regard and is the most trusted by the American people. If Senate Republicans fail to take a vote to fill the Supreme Court vacancy for the remainder of the Obama Administration (over 300 days), the American public might make them pay for it in November. Second, assuming the Senate fails to take up a vote on a judicial nominee and loses the upcoming Presidential election, what is the backup plan? Fail to take a vote on a Supreme Court nominee for another four (or eight) years? We can rest assured that a newly-elected President Clinton or Sanders would feel empowered to nominate a more liberal justice than a lame duck President Obama.
Moreover, these abstract political calculations are of the least importance when considering delaying the judicial appointment process. A little more than a quarter of the cases ruled by the Supreme Court last session resulted in a 5-4 majority. This means, assuming a new Associate Justice is not appointed to the position under the current presidential administration; it is very likely we will see several 4-4 ties on the court. In the case of a tie, the lower court’s earlier ruling is affirmed without the establishment of precedent. Aside from the fact that many of these lower court decisions originate from liberal majority opinions—something that should also concern and frustrate Republicans such as Senator McConnell—this means our highest court would not be able to provide the clarity on legal matters that we have come to expect and on which our legal system relies—risking the possibility of a diminished trust in the judicial branch among the public. I hope the President and the Senate Majority Leader agree, some things must outweigh partisan politics.
John C. Davis is an assistant professor of political science at the University of Arkansas at Monticello and writes a regular column for Southeast Arkansas media outlets.