Immediately after the announcement of the death of Supreme Court Justice Antonin Scalia, Senate Majority Leader Mitch McConnell (R-KY) issued a statement indicating that he will work to delay a replacement nomination until after the election:
“The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.”
Senate Judiciary Committee Chairman Chuck Grassley (R-KS) echoed his comments:
“The fact of the matter is that it’s been standard practice over the last nearly 80 years that Supreme Court nominees are not nominated and confirmed during a presidential election year. Given the huge divide in the country, and the fact that this president, above all others, has made no bones about his goal to use the courts to circumvent Congress and push through his own agenda, it only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court justice.”
Senator Chuck Schumer (D-NY) responded to McConnell’s statement:
“And he says, ‘No, we’re not having hearings, we’re not going to go forward. [Leaving] the Supreme Court vacant for 300 days in a divided time? This kind of obstructionism isn’t going to last. The American people don’t like this obstructionism … a lot of the mainstream Republicans are going to say: ‘I may not follow this.’”
Elizabeth Warren (D-MA) commented on the idea of waiting until after the election to give Americans a “voice” in the nomination:
“In fact, they did — when President Obama won the 2012 election by five million votes. Article II Section 2 of the Constitution says the President of the United States nominates justices to the Supreme Court, with the advice and consent of the Senate. I can’t find a clause that says ‘… except when there’s a year left in the term of a Democratic president.’”
Schumer’s comments are nothing more than political posturing, as here’s what he said in 2007 about the potential of George W. Bush’s making another Supreme Court nomination:
“We should not confirm any Bush nominee to the Supreme Court, except in extraordinary circumstances. They must prove by actions, not words, that they are in the mainstream rather than we have to prove that they are not.”
While a Senator, President Obama actively withheld his consent for John Robert’s nomination to the Supreme Court, saying this at the time:
“I ultimately have to give more weight to his deeds and the overarching political philosophy that he appears to have shared with those in power than to the assuring words that he provided me in our meeting. The bottom line is this: I will be voting against John Roberts’ nomination.”
He ALSO filibustered Samuel Alito’s nomination:
“I will be supporting the filibuster because I think Judge Alito, in fact, is somebody who is contrary to core American values, not just liberal values. While I certainly believe that Judge Samuel Alito has the training and the qualifications necessary to serve as a Supreme Court Justice,after a careful review of his record, I simply cannot vote for his nomination.”
Lastly, Obama made clear his understanding of the Senate’s involvement in the nomination process, clearly stating that rubber-stamping an appointment was unacceptable:
“There are some who believe that the President, having won the election, should have the complete authority to appoint his nominee, and the Senate should only examine whether or not the Justice is intellectually capable and an all-around nice guy. That once you get beyond intellect and personal character, there should be no further question whether the judge should be confirmed.
I disagree with this view. I believe firmly that the Constitution calls for the Senate to advise and consent. I believe that it calls for meaningful advice and consent that includes an examination of a judge’s philosophy, ideology, and record.”
When Obama does submit his nomination for Scalia’s replacement to the Supreme Court, certain to be accompanied with all sorts of encouragements to accept it, Republicans would do well to remind him of his (and Schumer’s) words about the process. Elections matter and so does the Constitution.
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