Quick Thoughts on the Supreme Court Vacancy

I was at Provo’s fantastic annual speculative fiction symposium, Life, the Universe, and Everything, when I saw the news of Justice Scalia’s passing on a muted CNN feed. I thought to myself, “This has implications,” and then went on to my next panel.

I did not expect Mitch McConnell and most of his caucus to unilaterally refuse to consider anyone the President would appoint.

We’ve all become used to Republican obstructionism in Congress over the last four years, but this is a new low. Section two of the U.S. Constitution specifically states that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court.” The process is clear: the President nominates, the Senate confirms (or rejects) the nominee, and vacancies in the Supreme Court get filled. Nowhere does the Constitution say that it being an election year matters, and the idea that it does is preposterous. If the same situation had happened while George W. Bush was president, I would have totally expected him to nominate a new judge. (After all, a nominee of conservative darling Ronald Reagan was confirmed during his last year as President.) I may not have agreed with his choice, but it would have been altogether fit and proper and necessary for him to nominate someone. The Supreme Court needs to keep functioning as intended.

Of course, judging by how many times Tea Party Republicans have tried to shut down the government over trivial issues, it really should come as no surprise that they’d try to shut down the Judicial Branch as well. What’s truly ridiculous about it is the fact that most tied Supreme Court rulings would help liberal causes, not conservative ones, because of the current makeup of U.S. Circuit Courts. But it wouldn’t be the first time that reality has made the Tea Party shoot itself in the foot.

What’s truly disgusting about the rhetoric coming from the G.O.P. Senators right now is the hypocrisy of how often they’ve accused Obama of undermining, flouting, or otherwise disrespecting the Constitution, yet when he does something specifically called for in the Constitution, it’s somehow inappropriate. It really makes them look like they are opposing Obama just because he is Obama rather than for any legitimate reason. Which, it’s pretty evident to me, is the actual case.

A lot of people have suggested that President Obama may try to dare the Senate not to confirm a choice by picking someone like Judge Srikanth Srinivasan, who’s relatively moderate (though still left-of-center) and who was confirmed to his current position three years ago by a Senate vote of 97 to 0.  I think the President should go one level further: finding someone who’s outspokenly for some hot-button conservative issue—say, anti-abortion—but liberal on most other issues. But perhaps that’s just my own biases talking. 😉

In any case, if the Senate wants to vote down President Obama’s nominee, that’s the Senate’s prerogative. But not even voting on a nominee because G.O.P. leaders despise the current President is clear negligence of Constitutional duties. If Republicans want to convince any rational person that they really care about the Constitution, then they need to vote on President Obama’s nominee, whoever that person is. And if they want to convince people that there is still legitimacy to the Republican Party, they should vote on that person based on his or her merits.



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