Background: On February 13, 2016, Supreme Court Justice Antonin Scalia passed away. With his passing, the nation lost one of its finest — a justice who fought to uphold the United States Constitution as our Founders intended. Shortly after his passing, President Obama announced his intention to replace Justice Scalia and demanded from the U.S. Senate a “timely vote” on his future nominee. While the President certainly has the constitutional power to nominate a replacement, even though it is his last year in office, the constitutional authority to confirm a judicial nominee resides solely with the Senate. Because of the President’s past efforts to undermine the separation of powers with executive overreach, the Senate should refuse to consider any Supreme Court nominee the President puts forth.
Senate Majority Leader Mitch McConnell and most Republican Senators are calling for any confirmation to occur only when a new president has taken office, after the American people have a voice on the direction of the Court. They should stand by this commitment to the end of the year and avoid any hearings or votes on President Obama’s expected nominee.
Executive Overreach: President Obama’s time in office has been marked by executive overreach and disregard for the separation of powers laid out in the Constitution. His efforts on Obamacare, amnesty, and Second Amendment rights are explicit examples of his dim view of the rule of law. Standing up to the President on Justice Scalia’s replacement represents the best opportunity Congress has left to rein in the President’s executive overreach.
Confirmation Process: The confirmation of a Supreme Court nominee is a lengthy process, and there are a number of steps that must be avoided to ensure the process does not move forward. The President will first submit his nominee to the Senate for consideration where it is usually referred to the Senate Judiciary Committee. Typically at this point the Committee holds hearings to vet the nominee and then votes amongst its members. The nominee is then often forwarded to the full Senate with a recommendation. In this case, the Senate Judiciary Committee should reject all of these steps and not consider the nominee at all. If the Committee were to forward the nomination (perhaps with a negative recommendation) to the full Senate over conservative objections, the nomination should be filibustered on the floor.
Historical Precedent: Over the course of our nation’s history, the Senate has denied 36 out of 160 nominees. 25 out of those 36 never made it past the Judiciary Committee to receive a vote on the Senate floor. It has been over 76 years since a Supreme Court Justice was nominated and confirmed during a presidential election year, and since 1900, the Supreme Court has functioned despite the absence of at least one justice 60 different times. In light of how President Obama has undermined our Constitution there is no need to deviate from this longstanding precedent.
Liberal Hypocrisy: President Obama and leaders of the Democratic Party have criticized Republicans for not agreeing to vote on a Supreme Court nominee. Ironically, former Senator Barack Obama and potential future Democratic Minority Leader Chuck Schumer have both attempted to block past Republican nominees to the Supreme Court. Senator Obama filibustered the nomination of Supreme Court Justice Samuel Alito in 2006. Senator Schumer argued against approving any George W. Bush nominee to the Supreme Court 19 months before the next President would be inaugurated.
In July 2007 Senator Schumer said, “Given the track record of this President and the obfuscation at the hearings, with respect to the Supreme Court, at least: I will recommend to my colleagues that we should not confirm a Supreme Court nominee EXCEPT in extraordinary circumstances. They must prove by actions – not words – that they are in the mainstream, rather than the Senate proving that they are not.”
President Obama is in the last year of his presidency and with an election less than 9 months away, the Senate should wait to decide on a replacement for Justice Scalia until there is a new President.
Claim: The President has a constitutional duty to nominate a Supreme Court Justice in the wake of Justice Scalia’s death.
Response: While the power to nominate a Supreme Court Justice resides with the President, only the U.S. Senate has the constitutional authority to confirm. In fact, the Constitution calls on the President to adhere to the advice and consent of the Senate.
Article 2 section 2 of the U.S. Constitution states, “He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court…”
The Heritage Foundation’s authoritative guide to the Constitution explains, “As the president has complete discretion in the use of his veto power, the Senate has complete and final discretion in whether to accept or approve a nomination.”
Claim: Senate Republicans should not put politics above their constitutional duties to confirm a new Justice. The Supreme Court cannot function without all 9 of its Justices.
Response: There have been 60 Supreme Court justice vacancies since 1900. Of the 160 individuals who have been nominated to the Supreme Court throughout our nation’s history, 25 were not confirmed without receiving a vote. Despite these vacancies, the Supreme Court has been able to perform its duties every time. Waiting for a new President who will be decided by early November will allow the American people to have a critical voice in deciding who the next Supreme Court Justice will be.
Claim: The Senate should be reasonable and at least allow a vote on an Obama Supreme Court nominee.
Response: The debate over replacing Justice Scalia is centered on the nomination process not the merits of any potential nominee. A lame duck president should not fill a seat on the Supreme Court. This should be left up to the next president — Republican or Democrat — who the American people will decide in November. The Senate Judiciary Committee should not consider any nominee.
Claim: Won’t Senate Republicans be viewed as obstructionists?
Response: No. The public understands that a lame duck President should not get to set the direction of the Court with another lifetime appointment months before the election. That is why the Senate’s “advice and consent” role is so important.