The death of Justice Antonin Scalia has put the U.S. Supreme Court at the center of the 2016 election maelstrom and only the Senate can stop the vortex before real damage is done.
The sad state of polarization in this nation reached a new low when, about an hour after news of Scalia’s death was out, Senate leader Mitch McConnell marked the occasion not by mourning a leader of conservative thought and the nation’s longest-serving justice, not by offering condolences to his spouse of 55 years or his nine children, but by stating flatly that President Obama should refrain from even naming a nominee despite having nearly a full year left in his term.
That McConnell would attempt to block any Obama nominee should surprise no one. Last June, when Obama had a year and a half left in his term, the majority leader served notice that the Senate would not confirm any more of the president’s circuit court nominees. But stating that the president should refrain from filling out his duties in the last year of his term is not reasonable and is a precedent the Senate should be wary of setting.
The Senate already has the means of dispensing with any presidential nominee: Hold hearings, take a vote and reject. But McConnell knows there is risk there. Hearings that drag out over months, turning down nominee after nominee, would cast Republicans as obstructionists, while the most controversial cases before the court could now split 4-4 between the conservative and liberal blocs of justices.
Obama has already made a serious overture to the Senate. He has publicly foregone the option of a recess appointment, saying instead that he will name a nominee only after the Senate returns from recess later this month.
If Obama chose to make a recess appointment, he would be well within his rights. Article 2 of the Constitution gives the president the power to make such appointments. With Congress out until Feb. 22, Obama could easily appoint a nominee who could serve until Jan. 2017. The tactic was a favorite of Dwight Eisenhower, who employed it three times to get his nominees on the high court. No president has resorted to such a tactic since.
In a jab at the constitutionalists who make up a core of Senate Republicans, White House spokesman Eric Schultz said that once Obama does name a nominee, “we expect the Senate to consider that nominee, consistent with their responsibilities laid out in the United States Constitution.”
McConnell knows well that presidents can and do make appointments in their final year. He voted for one in 1988, when he joined with a Democratic Senate to confirm Anthony Kennedy in President Reagan’s last year in office.
One can only wonder what Scalia would make of this free-for-all. An intellectual force in his three decades on the court, Scalia believed passionately in upholding what he saw as the original intent of the Constitution.
The Senate’s constitutional duty is clear. It is to be hoped that the Senate Judiciary Committee upholds that duty. And Minnesotans should expect that Sen. Amy Klobuchar and Sen. Al Franken — both members of that committee — will make a loud and persistent case for conducting prompt hearings on whomever the president nominates.