Both sides–Democrats and Republicans–have been know to engage in political posturing. I am convinced, in the current political climate, were a Republican president in office when a liberal Justice died we would hear just as much about what the president should and shouldn’t and can and can’t do as we have been hearing from the right. And from the left, we would hear how awful such suggestions are. In fact, according to this article from Think Progress both Mitch McConnell, the Senate Majority leader, and Chuck Grassley, the Senate Judiciary Committee chair, have suggested the President should NOT make a nomination in order to allow the VOTERS to have input (as if electing President Obama for a second term by five million votes didn’t give them input).
I am, therefore, exceedingly glad for our Constitution, which spells out the process and charges the President and the Senate to act. We are blessed to have a system in place that allows for all the political posturing in the world yet at the same time assures us of a peaceful process and ultimately a smooth transition. I trust President Obama will submit his nomination for the Supreme Court in a timely manner. And, I fully expect the Senate to respond when given the opportunity. According to the Constitution, after the President makes a nomination the Senate Judiciary Committee holds hearings and makes a recommendation to the Senate. The confirmation process has averaged 62 days for the current court and has never taken more than 125 days. Thus, with more than ten months left in his presidency, Barack Obama and the Senate have plenty of time to select and confirm a new Supreme Court judge.
So, what’s the fuss?
Well, while I am confident President Obama will find a person qualified to be the next Supreme Court justice I am not as confident the Republican controlled Senate will agree on his or her qualifications. Even so, a vote against a nomination is not the worst scenario. In fact, the failure to confirm has happened multiple times and not just during an election year. A failure to confirm is actually part of the legitimate process. My concern in this situation focuses on other possible scenarios which are considerably less honorable.
Both Senator Grassley and Senator McConnell have the ability, by virtue of their positions in the Senate, to stop the confirmation process almost before it gets started. Sadly, both men initially suggested they saw stalling the process as their duty. In such a contentious election year they argue, the voters should be allowed to decide by way of the election.
Within days of Judge Scalia’s death, Senator Grassley pronounce not confirming as “standard practice” in such cases. He cited an 80 year precedent to support his assertion. But in fact, at least 14 judges have been confirmed during election years, including Anthony Kennedy who was nominated in 1987 and confirmed in 1988, an election year. If Grassley chooses he could single handedly disrupt the process simply by failing to allow a hearing. His more recent comments have been somewhat tempered, indicating he will wait to see who President Obama nominates. At 82, going for a seventh term, Grassley’s re-election cannot be described as a sure thing, especially considering the growing avarice toward Washington insiders. The threat to his own election may have something to do with his most recent stance.
As the Senate Majority leader, Mitch McConnell has been equally outspoken with regard to who should chose the next Supreme Court judge. He can also unilaterally derail the confirmation process by refusing to allow a vote by the full Senate. In a Washington Post op-ed written with Grassley, Senator McConnell painted the situation with clear black and white strokes, implying the confirmation of an Obama nomination would be tantamount to robbing the American people of their chance to weigh in. Unlike Grassley, McConnell just won a mid-term re-election bid and won’t be up for another fight until 2020 when he will be 80. Like Grassley, McConnell is a longtime fixture in Washington.
Given all the rhetoric coming from Senator Grassley and Senator McConnell one might be surprised to learn both men voted to confirm Anthony Kennedy in 1988. Of course, Kennedy was nominated by Ronald Reagan so we can assume party politics had something to do with their position back then as much as it does right now. After all, they also voted for Robert Bork who was ultimately rejected by the Senate at large. The question they each must answer is, what’s the personal cost?
So, what exactly is at stake for the GOP? Congress already has a reputation for trying little and accomplishing even less. What could possibly be the advantage of waiting? Wouldn’t Clinton or Sanders have as likely a chance of naming the next justice as whoever the Republicans pick? Maybe. However, the Reagan Democrats are pretty disheartened with the Republican party at the moment and might just stay home from the general election if their candidate doesn’t win the nomination, which honestly isn’t looking too promising. At the same time, the religious right isn’t particularly excited about Trump, so if he gets the nod they might just stay home. The specter of picking a Supreme Court judge and influencing the court for the next decade or longer might just be what the Republicans need to pull the fractured GOP base together.
As for Clinton and Sanders, letting President Obama select the replacement for Scalia makes sense. In fact, picking and pushing a nominee through the Senate could use most of their first year’s political clout. Thus, even a moderate selected by the President would be better than the distraction, from their own agendas, picking a judge would create.
So, stay tuned because if the coming election wasn’t bubbling enough for you, the death of Justice Scalia just turned up the heat.