The sudden passing of Supreme Court Justice Antonin Scalia leaves us with a vacancy to fill on our country’s highest court, but it shouldn’t leave us with a yearlong political standoff.
Article II, Section 2 of the Constitution is clear that the president “shall” nominate Supreme Court justices with the advice and consent of the Senate. It doesn’t say “may,” and it certainly is not followed by a clause that says, “Senators don’t have to do their jobs in election years.”
Complete refusal to consider any nominee from this president is outrageous. It’s indefensible. And it’s unprecedented.
For the past century, the Senate has taken action on every single pending Supreme Court nominee.
In 1988, a Democratic majority unanimously confirmed Justice Anthony Kennedy during President Reagan’s final year in office.
According to the Congressional Research Service, since 1975, the average length of time from nomination to a confirmation vote for a Supreme Court nominee is just 67 days.
President Barack Obama has about 330 days left in his term – nearly a year. That is more than enough time for the Senate to carefully consider and review a nominee.
If we fail to confirm a nominee this year, two Supreme Court terms will pass before a new justice is appointed.
I recently spoke with Peter Shane, a constitutional law professor at the Ohio State University Moritz College of Law in Columbus.
Shane said that a vacancy of this unprecedented length on the Supreme Court “will compromise its ability to perform its proper constitutional function” and create “prolonged uncertainty.”
It could also endanger our citizens, according to a group of former U.S. attorneys, including Steve Dettelbach of the Northern District of Ohio. They wrote, “The Supreme Court is the ultimate arbiter of the hardest and most important questions facing law enforcement and our nation. . . . It is unfair and unsafe to expect good federal agents, police and prosecutors to spend more than a year guessing whether their actions will hold up in court.”
Even the Senate’s Republican Majority Leader Mitch McConnell has agreed with a normal, deliberative approach for Supreme Court nominees.
In 2005, he said, “Our job is to react to that nomination in a respectful and dignified way, and at the end of the process, to give that person an up-or-down vote as all nominees who have majority support have gotten throughout the history of the country.”
Now we have a different president, and Senate Republicans are unwilling to do their jobs.
They are refusing to even hold hearings on any nominee, let alone a vote. Some have said they won’t even meet with any nominee — no matter who it is.
That is far from the “respectful and dignified” reaction McConnell called for.
The consistent attempt to delegitimize our democratically elected president is politics at its worst.
The other side justifies the gridlock, saying: We “need to let the people make their choice.”
The people made their choice – twice – and Barack Obama is our president. And just like every other president in our history, the people elected him to four years, not three.
In 2013, Republicans in Congress didn’t like that Americans – and Ohioans – elected Obama to a second term, so they shut down the government.
Three years later, they still don’t like it.
And now they’re trying to shut down the Supreme Court nomination process.
You don’t shut the whole system down when you don’t get your way.
It sets a dangerous precedent that undermines our democracy.
I expect President Obama to fulfill his constitutional duty and send a qualified nominee to the Senate soon. And when he does, the Senate should do the job the American people sent us here to do.
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