February 17, 2016

KOWALEWSKI | The Rule of Law

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With the recent death of Supreme Justice Antonin Scalia, the United States has lost one of its greatest legal minds. Scalia’s nearly 30-year tenure on the Supreme Court was marked by his textualist philosophy, pointed questions and his carefully crafted and passionate opinions. Further, his presence also shifted the Court in a notably conservative direction, including on Second Amendment jurisprudence. Although Scalia’s legacy will be indisputably controversial, none can question that it is significant.

Nonetheless, we now have a vacancy on the Court. The current timing is not ideal — arising in the middle of an already contentious presidential election season. Yet President Barack Obama has nearly an entire year left in his term. And according to the Constitution, he has not only the authority but the obligation to appoint a replacement. There is no provision for inconvenient timing.

Unfortunately, this does not seem to matter to many members of the Senate. Within hours of the announcement that Justice Scalia had passed away, Senate Majority Leader Mitch McConnell declared that the Senate would not consider any nominee that President Obama selects. The rest of his Republican colleagues quickly agreed. Blanket opposition to all possible candidates, it appears, is the Republican response.

They have sought to cloak this unprecedented move, ironically, by appealing to supposed institutional norms. Republicans have repeatedly cited the fact that “a Supreme Court nominee hasn’t been confirmed in an election for 80 years.” Except Justice Anthony Kennedy was confirmed 97-0 in 1988, the final year of Ronald Reagan’s presidency. Before him, 13 other Justices were confirmed during an election year. President Obama’s pledge to nominate a replacement is standard practice — and the idea that he should not is fairly unusual.

After all, the repeated talking point is that we should wait until after the election and “let the American people decide.” However, the presidential election is not for another nine months; both parties are still engaged in highly contentious primary contests. If we wait, this vacancy could persist for more than a year. It is true that the Court functions with only eight members, but it does not function well. An even number of Justices significantly increases the odds of a 4-4 split decision. This affirms the ruling of the lower court, but results in no opinion or clarification from the Supreme Court. Crucial matters of constitutional law should not be left undecided because of political games in the Senate.

This form of obstructionism is sadly not new to the Obama presidency. Senate Republicans have repeatedly stalled the President’s other judicial appointments, and since taking back the majority last January, they have essentially ended the process for selecting new appellate judges. Even before this, the federal court system was overworked and understaffed. Right now, our strained judiciary does not need more difficulty at the very top.

Clearly, President Obama is correct to acknowledge his constitutional duty to nominate a new Supreme Court Justice. The Senate, too, should accept its basic responsibility to advise this nomination. Indeed, the confirmation process for the Supreme Court is not a light one. Every nominee encounters intense scrutiny: a proper measure for a lifetime appointment to the highest court in the land. When Justice Sonia Sotomayor was nominated in 2009, she was required to submit an exhaustive briefing on her entire career on the federal bench — totalling more than 5,000 pages. In this intense political environment, it seems quite possible that President Obama’s nominee will be the most carefully investigated in history.

After holding these confirmation hearings, the Senate may find President Obama’s nominee unacceptable. It would not be the first time that a potential Justice was rejected. But before he knows who it is, Majority Leader McConnell has refused to even consider a nominee. I suspect that this reluctance may sprout from the fact that there are several candidates with a history of undivided support from the Senate. Judge Sri Srinivasan and Judge Jane Kelly both enjoy impeccable credentials and a moderate record — Republicans would be hard pressed to find a legitimate argument against their confirmation.

This, finally, reveals the actual motivation of the Senate. It is perfectly understandable that Republicans are wary of replacing Justice Scalia with an appointee from President Obama. And they should be honest about their reflexive opposition; to claim that President Obama has no right to appoint a nominee is absurd. The reality is more simple. Few potential nominees — even those from a Republican president — would be able to match Justice Scalia’s conservative credentials. Fewer still would be able to match his stature on the Court. Democrats, too, would be anxious about replacing a similarly eminent liberal Justice. But the Court is ever-changing. Our political system must not be paralyzed every time it does.

On September 17, 1986, Antonin Scalia received the unanimous support of the United States Senate. Isn’t it time, now, to at least give President Obama’s nominee a chance?

Kevin Kowalewski is a junior in the College of Arts and Sciences. He can be reached at krk78@cornell.edu. Democratic Dialogue appears alternate Thursdays this semester.

  • Abe ’14

    The Democrats did the same thing with 18 months left in Bush’s presidency. Chuck Schumer said that they would refuse any more nominees by W. Obama joined him in this call. Though there was never a need to filibuster, they were full well prepared to do so. But let’s not forget, Obama stood against Alito. Democrats rejected Bork before Kennedy.

    The Republican Senate would betray its constituencies to allow an appointee that would work to reverse Scalia’s legacy. Obama has had two appointees already that have worked to destroy our Constitution. He will not and should not get a third.

  • George

    The Republicans made a strategic error. They should have said that they could carefully consider any nominee Obama put forward and then shit can him or her. Instead you have idiot liberals foaming at the mouth declaring that the Republicans hate the Constitution. Unfortunately other idiots believe that garbage.

  • Andrew

    Well written. I would add that while Senate Majority leader McConnell is spearheading this opposition, another key player is Republican Grassley from Iowa, the chair of the Senate Judiciary Committee. Grassley wields the power to determine if Obama’s nominee stays on the committee’s agenda. Vetting occurs through the Judiciary Committee before it can even reach the floor for a confirmation vote. So far, Grassley hasn’t given a definite “yes” or “no”. He might bend more easily than McConnell, though, who as you mentioned has already made the public pledge.

  • Man with the Axe

    The vacancy Kennedy filled did not occur in an election year. First there was Bork in 1987, and then Douglas H. Ginsburg, and then finally Kennedy.

    As another commenter alluded to, Obama voted to filibuster Alito. That didn’t work, but if it had he would not have received a vote. A bit hypocritical of Obama to demand a vote on his nominee. And there is the Schumer speech, which he shamefacedly tries to disavow.

    But the main point is that Democrats and liberals have politicized the court so much since Roe v. Wade, and continuing until today with Obergefell and the Obamacare cases. Substituting a liberal, even a moderate one, for Scalia changes the court’s balance significantly. The Republicans would be crazy to give in. If the shoe were on the other foot (Obama, Schumer) we know what Democrats would do. They’ve already done it.

    And don’t get me started on how they treated Robert Bork and Clarence Thomas.