Moments after news of Justice Antonin Scalia’s death became public, Republicans united around a single message: Obama should not nominate a replacement and, if he does, the Senate will not consider it.
Recently, some Republicans have been wavering, but it remains the party line.
The position, on its face, appears to contradict the text of the Constitution which empowers the president to make the nomination and tasks the Senate with providing their “advise and consent.”
Nevertheless, Republicans have advanced a number of arguments to defend their position. None of them hold up to scrutiny.
1. ‘It’s been standard practice over the last 80 years to not confirm Supreme Court nominees during a presidential election year’
This what Senator Chuck Grassley (R-IA), the chairman of the Senate Judiciary Committee, said shortly after Scalia’s death was confirmed. It is not true.
In 1988, the last year of Reagan’s second term, the Senate unanimously confirmed the nomination of Justice Anthony Kennedy.
The framing of this soundbite, moreover, is highly misleading. Supreme Court vacancies are rare and, by happenstance, few have occurred during presidential election years.
When such vacancies have occurred, they have almost always been filled. This chart by David Mendoza succinctly reviews the history:
CREDIT: David Mendoza, Reprinted With Permission
The one exception was in 1968 when Strom Thurmond blocked the nomination of Abe Fortas to be Supreme Court Justice because he was upset that Fortas supported civil rights for African Americans.
This is occasionally referred to as the “Thurmond Rule.” But, as Mitch McConnell and other Republicans have noted, the “Thurmond Rule” does not exist.
2. ‘The American people should have a voice in the selection of their next Supreme Court Justice’
As it turns out, the Supreme Court was a major issue in that election. Here’s how Romney made his case to voters:
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.
Polls reveal that, indeed, the future of the Supreme Court was an important factor in how people voted. The majority of voters selected Obama.
Republicans counter that there was also an election in 2014 that handed the Senate to Republicans. But, per the Constitution, the role of the Senate is to provide “advice and consent” on Obama’s nominees, not to refuse to consider any nominee.
3. In 2007, Chuck Schumer said the Senate ‘should not confirm another U.S. Supreme Court nominee under President Bush’
We cannot afford to see Justice Stevens replaced by another Roberts or Justice Ginsburg replaced by another Alito. Given the track of this President and the experience of obfuscation at hearings, with respect to the Supreme Court at least, I will recommend to my colleagues that we should not confirm any Bush nominee to the Supreme Court except in extraordinary circumstances. They must prove by actions not words that they are in the mainstream rather than we have to prove that they are not
Schumer is explicitly talking about holding votes and conducting hearings on Bush’s nominees. His argument is that the Senate should reject such nominees if they cannot demonstrate they are in the “judicial mainstream.”
Republicans are arguing, in contrast, that Obama should not nominate someone to fill a Supreme Court vacancy and that, if he does, the Senate will not consider such a nomination.
4. Obama can’t be permitted to replace Scalia with someone more liberal
“We’re not going to give up the U.S. Supreme Court for a generation by allowing Barack Obama to make one more liberal appointee,” Senator Ted Cruz said.
This is not how it works. The ideological makeup of the court shifts over time.
Scalia effectively replaced Chief Justice Warren Burger on the court. Burger was a key vote in numerous “liberal” decisions on abortion, capital punishment and school desegregation.
Scalia’s nomination shifted the ideological makeup of the court to the right.
Yes, Obama’s nominee will likely shift the ideological makeup of the court. But that happens, to one degree or another, every time a new Supreme Court justice takes the bench.