The news of Supreme Court Justice Antonin Scalia’s death was still fresh Saturday when prominent Republicans started to make some bold proclamations.
Sens. Ted Cruz and Marco Rubio both declared Saturday that the nomination of Scalia’s replacement should be the responsibility of the next president. That’s unsurprising, given that both are campaigning to be the next president.
Perhaps most distressing was Senate Majority Leader Mitch McConnell’s agreement with the presidential candidates. “The American people should have a voice in the selection of their next Supreme Court justice,” the Kentucky Republican said Saturday. “Therefore, this vacancy should not be filled until we have a new president.”
It’s a mystery to us how the American people would not have a voice if President Obama, the sitting president with 11 months remaining in office, fulfilled his constitutional responsibility and nominated a replacement for Scalia. The voters elected Obama to the White House in 2008 and again in 2012. They elected him to serve two terms of four years each — not to serve only until the next presidential campaign was in full swing. Plus, voters elected each of the 100 senators who would have the opportunity to vet the president’s nominee and vote for or against his or her confirmation.
Amid the many Republican proclamations that Obama shouldn’t nominate a justice, we were pleased to see Maine’s Republican senator, Susan Collins, reserve judgment on the matter and emphasize the Senate’s role — as outlined in the Constitution — in selecting someone to serve as Supreme Court justice.
“More than any other appointment upon which the Senate is called to pass judgment, nominees to the Supreme Court warrant in-depth consideration given the importance of their constitutional role and their lifetime tenure,” she said in a statement reported by Politico. “Our role in the Senate is to evaluate the nominee’s temperament, intellect, experience, integrity and respect for the Constitution and the rule of law.”
Collins has emphasized the Senate’s responsibility to consider a president’s judicial nominees before. In 2005, when George W. Bush was president and Democrats were blocking judicial nominees, Collins joined the bipartisan Gang of 14 that set a reasonable standard for judicial appointments: holding up judicial nominees only in “extraordinary circumstances.” The compromise respected the sitting president’s right and responsibility to appoint members of the judiciary and the role of both the minority and majority parties in the Senate with regard to one of their key constitutional responsibilities.
Eleven years later, the same standard should apply — which highlights just how problematic it is for McConnell to declare that the next president should nominate Scalia’s replacement.
Obama has yet to even make a Supreme Court nomination, so it’s premature to treat a future Obama nomination as an “extraordinary circumstance” that compels a Senate filibuster. When Obama nominates a jurist, the Senate must take its constitutional role of “Advice and Consent” seriously.
In 2005, McConnell didn’t join the Gang of 14, but he did display more respect then for the Constitution than he did on Saturday. “Any president’s judicial nominees should receive careful consideration. But after that debate, they deserve a simple up-or-down vote,” he said in a May 2005 statement documented by States News Service. “It’s time to move away from advise and obstruct and get back to advise and consent.”
Voters elected Obama to carry out the president’s responsibilities as outlined in the Constitution. They elected the 100 senators to fulfill their constitutional responsibilities as well. Both the president and the Senate have the responsibility to take their constitutionally defined roles seriously.