Just hours after the sudden death of Supreme Court Justice Antonin Scalia on Saturday, Senate Republicans vowed to block any nominee President Obama might select to replace him. But while their argument boiled down to the idea that such an important issue should be left up to voters, this issue was indeed squarely before the voters in the 2012 election, when Americans overwhelmingly elected Obama to be their president until January 2017.
In his statement on Saturday, Senate Majority Leader Mitch McConnell (R-KY) put it succinctly. “The American people should have a voice in the selection of their next Supreme Court Justice,” he argued. “Therefore, the vacancy should not be filled until we have a new president.” Senate Judiciary Committee Chairman Chuck Grassley (R-IA) said that given the country is divided and President Obama wants to use the courts to “push through his own agenda, it only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court Justice.” Sen. Marco Rubio (R-FL) observed that, “In the last year of a president’s term, in his second term especially, there should not be Supreme Court nominees put into lifetime positions for a president that you’re not going to hold accountable at the ballot box.”
It may be politically expedient for these men to avoid mention of the 2012 election, but at that time, the issue of the future of the Supreme Court was very much in the public’s consciousness and the expectation was very much present that Justice Ruth Bader Ginsburg, Anthony Kennedy, or Scalia might leave the court between 2013 and 2017.
Mitt Romney: In A Second Term, Obama Would Remake The Supreme Court
Mitt Romney, the Republican nominee, attempted to garner votes by promising to appoint very conservative people to the Supreme Court. He told an editorial board in late 2011 that if he had the opportunity to appoint a Supreme Court justice he or she would be in the mold of Antonin Scalia, Clarence Thomas, Samuel Alito and Chief Justice John Roberts. “Their approach is the approach I would encourage,” Romney said. He made the same point on his campaign website, on a page devoted specifically to his views on “Courts & the Constitution.”
Romney also told members of the National Rifle Association that Obama’s reelection would change the majority on the high court: “In his first term, we’ve seen the president try to browbeat the Supreme Court. In a second term, he would remake it. Our freedoms would be in the hands of an Obama court, not just for four years, but for the next 40. That must not happen.’’
Joe Biden: The Next President Will Get One Or Two Supreme Court Nominees
The issue came up in the general election debates as well. Vice President Joe Biden made the case to the American people that the future of the Supreme Court should be a voting issue. “The court — the next president will get one or two Supreme Court nominees. That’s how close Roe v. Wade is,” he observed. “Just ask yourself, with Robert Bork being the chief adviser on the court for Mr. Romney, who do you think he’s likely to appoint? Do you think he’s likely to appoint someone like Scalia or someone else on the court far right that would outlaw abortion? I suspect that would happen. I guarantee you, that will not happen. We picked two people. We pick people who are open-minded. They’ve been good justices. So keep an eye on the Supreme Court.”
Conservative Advocates: A Reelected Obama Would Return Us To The Warren Court
Conservative advocates also highlighted the importance of the Supreme Court in the 2012 election. In American Thinker, Lester Jackson warned that “the reelection of Obama would guarantee, for another generation, an out-of-control Court with contempt for both the law and the Constitution. That’s surely reason enough to vote for Romney.”
Committee for Justice president Curt Levey wrote, “Justices Antonin Scalia and Anthony Kennedy will both be eighty in 2016, so I think they’d be next on the list [after Ruth Bader Ginsberg] to retire. … There’s a strong likelihood that at least one of them will leave the bench, which means that Obama, if reelected, will likely be able to replace one of them with a liberal, and that’s all he needs to create a court along the lines of the liberal court of the 1960s under Chief Justice Earl Warren. There are already four predictable, consistent liberals on the court. All Obama needs to do is replace Kennedy or Scalia, and he’s got the votes to do pretty much whatever he wants, from making gay marriage a constitutional right to requiring taxpayer funding of abortion, etcetera.”
Then-Liberty Counsel Action vice president Matt Barber published an opinion piece on LifeNews titled, “Christians Should Vote for Romney, Because Judges Matter.” Forbes magazine even published an article called “Obama Victory Could Spell End Of Conservative Supreme Court.”
A USA Today column in September 2012 made the stakes absolutely clear. “The next president could fill as many as three, perhaps more, Supreme Court vacancies. If President Obama returns to office, he may name an outright majority of the court, the first time this has happened in more than half a century,” it noted. “In the next presidential term, vacancies will likely occur across the court’s ideological spectrum, providing the president the opportunity to dramatically remake the court’s ideological balance. For a narrowly divided court, such a shift would have a profound impact on American law.” The author of that column, Gregg Nunziatta, was Chief Nominations Counsel to the Senate Judiciary Committee for the confirmations of Chief Justice John Roberts and Justice Samuel Alito and is now general counsel for Rubio.
Voters: A Court That Puts Citizens Ahead of Corporations
Most importantly, polling indicates that voters took these questions seriously. An August 2012 survey found that 63 percent of all voters (and a majority of independent voters and presidential “swing” voters) said Supreme Court nominations were “an important consideration” in their vote. The same survey found that 54 percent worried that Romney would nominate justices who would “consistently favor corporations over ordinary Americans.”
President Obama has not appointed a single Supreme Court justice yet in this term — but, after seeing his two nominations in the first term and hearing clearly divergent visions from his campaign and Romney’s, nearly 5 million more Americans voted for Obama than voted for his opponent.