Federal Courts and Nominations

Senator McConnell’s Partisan Supreme Court Smokescreen

Senate Majority Leader Mitch McConnell’s (R-Ky.) immediate reaction on Saturday to the news of the death of Supreme Court Justice Antonin Scalia was a knee jerk, hyper-partisan announcement, an obstructionist claim that the Senate should not act on any nominee submitted by President Obama but instead should leave the Court short-handed for at least a year. According to McConnell, “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.”

McConnell has it all wrong. The American people have already had “a voice in the selection of their next Supreme Court Justice.” In 2012, Americans went to the polls and re-elected Barack Obama as President, giving him the constitutional responsibility to submit nominations for any judicial vacancies occurring during his term in office, including Supreme Court vacancies. Senators have a similar constitutional obligation to advise and consent on nominees. They are free to reject an Obama nominee on the merits if they deem that person unfit, but the assertion that this entire year has become off-limits to filling a Supreme Court vacancy has no constitutional basis; it would also harm the Court itself as well as devalue the votes cast for Mr. Obama in 2012.

In 2012, President Obama was of course re-elected to a four-year term, not a three-year term as McConnell is trying to make it. In fact, by McConnell’s “logic,” no President in his or her second term should be permitted to fill any Supreme Court vacancy. Why would it have mattered if Justice Scalia had passed away a few months ago, or a year ago? Why not wait for the next President to be elected, and give the people “a voice” in the selection of the new Justice?

Since the very beginning of Barack Obama’s presidency, Senator McConnell and his conservative colleagues have done everything they can to obstruct the judicial nominations and confirmation process and prevent this President from filling judicial vacancies. Much of this obstruction has flown under the radar as it has involved lower court nominees, who typically do not garner much public attention. But a Supreme Court vacancy does not go unnoticed. And McConnell’s partisan obstruction should now be seen by everyone for exactly what it is.

The American people should not countenance this effort to hamstring the Supreme Court and its critical role in our Nation for a year or more. During the presidential election year of 1988, Senator McConnell and all of his Republican colleagues in the Senate voted to confirm President Reagan’s nominee, Anthony Kennedy, to the Supreme Court. Neither the Constitution, nor the roles of the President and the Senate, have changed in the interim.

President Obama has announced his intention to submit to the Senate a nominee to fill the vacancy on the Court. Once he has done so, it is the Senate’s constitutional responsibility to act timely on that nomination.

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