Disproving Republican rhetoric around Supreme Court nominations
This past Saturday, the Supreme Court lost its longest-serving and most illustrious member. Justice Antonin Scalia was a legendary conservative known for his wit, strict interpretation of the law, resistance to progressive actions and scathing dissents. His death has affected the races for both the White House and the Senate and has revealed what we all knew but have yet to face full-force.
As everyone familiar with modern American politics expected, Republicans are freaking out about the possibility of President Barack Obama nominating a third Supreme Court justice before the end of his time in office. Republicans in the Senate and on the campaign trail have suggested that no judge be nominated to replace Scalia until the next president takes office. Of course, this move is a significant gamble on the Republicans’ part because there is still a distinct possibility that a Democrat will be our next president, and also because of the effect it could have on their attempts to maintain the vulnerable Republican majority in the Senate. Regardless, at the very least, it’s a terrible demand to make.
The partisan polarization of Washington D.C. isn’t going away any time soon, but the fact that Republicans both in the Senate and on the campaign trail have preemptively denounced a mystery nominee is reminiscent of the days when John Boehner first told his Republican majority to oppose every Obama action. Their rhetoric barely even makes an attempt to hide the fact that they simply don’t want a liberal judge, or even a moderate one, to replace Scalia. The argument that it’s somehow not a representation of the voters’ collective will or that this election should be a “referendum on the Supreme Court,” as Senator Ted Cruz has suggested, implying that an Obama appointee would not represent the will of the voters, demonstrates either a misunderstanding of the Constitution—unlikely, considering Cruz has a degree from Harvard Law School—or a blatant partisan attempt to prevent the nomination of someone with whom the Republicans disagree.
I can’t imagine anyone disagreeing with Senate Majority Leader Mitch McConnell’s statement that “the American people should have a voice in the selection of their next Supreme Court justice.” They should indeed, and they did three years ago when they reelected President Obama over Mitt Romney, knowing full well that the Constitution dictates that the president nominate justices to the court. The fact remains that, until Jan. 20 of next year, Obama is our president. We don’t elect our president to rule for all but the last year of his presidency.
Ted Cruz and others have argued that there exists some long-standing tradition of presidents allowing their successor to fill a vacancy created during that president’s last year in office, a claim that is simply not true. (One may recall Donald Trump’s comment, “How can Ted Cruz be an Evangelical Christian when he lies so much and is so dishonest?”) It’s hardly tradition for presidents in their final year to hold off on a nomination. The only three election years in the last 80 years in which a seat opened up were 1940 and 1968, when Presidents Roosevelt and Johnson both nominated new justices to the Court. Although the last justice both nominated and confirmed during an election year was Frank Murphy in 1940 (Johnson’s nominees both withdrew), it’s not because it was undemocratic, or against tradition, but because the issue didn’t come up.
Anyone with Internet access can find out this information. Republicans aren’t even trying to hide the fact that they’re prioritizing politics and pandering to their ever rightward-shifting base over governing the country. We’ve always known of the divide between the anti-Obama Congress and the Obama administration, but we have not yet seen it in a manner so public and blatantly partisan. Another part of what makes this nomination fight unique is the fact that Republicans, especially on the campaign trail, have chosen to paint the situation as a failure on Obama’s part to fulfill his duties to the American people. Ideological divides often cause the Senate to oppose presidents’ nominees, but it’s absurd for the majority party in the Senate to tell the electorate that a sitting President doesn’t have the mandate to nominate a justice.