From the moment Justice Antonin Scalia’s death was reported last weekend, Senate Republicans made clear that replacing him would become one of the most contentious political battles in decades. Within minutes of the announcement, the rush to obstruct President Obama from choosing his replacement began.
In an op-ed published in the Washington Post on Thursday, Senate Majority Leader Mitch McConnell (R-KY) and Senate Judiciary Chairman Chuck Grassley (R-IA) attempt to frame confirming any Supreme Court nominee at all over the next year as a scheme by Democrats to “rob voters of chance to replace Scalia.”
The two men — both of whom voted to confirm Ronald Reagan’s nominee, Justice Anthony Kennedy, in February of the final year of his presidency — have virtually unilateral power to prevent the Senate from even considering a potential nominee: Grassley can refuse to schedule a confirmation hearing and McConnell can simply opt not to allow a vote.
While much of their article simply notes that some Democrats have also embraced obstructionism and delays in the past, the senators’ key points have been debunked by one the Senate’s most powerful Republicans: Mitch McConnell himself.
1. Elections Matter
McConnell and Grassley suggest that because a Supreme Court seat is vacant, this gives the American public the chance to send a signal on the direction of the judiciary with their votes in November. They wrote that “the American people have a particular opportunity now to make their voice heard in the selection of Scalia’s successor as they participate in the process to select their next president — as they decide who they trust to both lead the country and nominate the next Supreme Court justice. How often does someone from Ashland, Ky., or Zearing, Iowa, get to have such impact?”
The answer, of course, is that those voters get that opportunity every four years. The direction of the Supreme Court was a key issue for many voters in the 2012 elections, when President Obama was reelected with nearly 5 million more votes than his Republican opponent.
Back in 2001, shortly after George W. Bush’s controversial inauguration, however, McConnell argued that the Republican president should be given a free hand to shape the courts. At a June 26 Judiciary Committee hearing, McConnell noted his long support for this principle. “My view then and my view now is that the President won the election, no matter what the margin, and is entitled for the most part to tilt the judiciary in the direction that he feels appropriate.” He added that the “appropriate role of the Senate is largely… to judge the competence and the integrity and the fitness of a judge to be on the bench.”
2. Past Precedent
Another argument the senators make in their recent op-ed is that the Senate has not recently confirmed a nominee this late in a presidential term. “Rarely does a Supreme Court vacancy occur in the final year of a presidential term, and the Senate has not confirmed a nominee to fill a vacancy arising in such circumstances for the better part of a century,” they observe.
But the fact that no justice happened to die in the final year of a president’s administration in recent years does not change the fact that since 1900, six justices have been confirmed during a presidential election year. And just one seat was left open for more than 301 days since the court went to nine justices.
Just 11 years ago, McConnell objected to these sorts of procedural delays. In a July 20, 2005 floor speech in support of the John Roberts nomination, he said:
Slow walking the process beyond historical norms and engaging in a paper chase simply to delay a timely up-or-down vote are not hallmarks of a fair process. The Supreme Court begins its new term on October 3. As Senator Frist has pointed out, the average time for a nomination to confirmation for the current justices was 62 days. The average time from nomination to confirmation for President Clinton was 58 days. Justice Ginsburg was confirmed in only 42 days. The Senate has 72 days to complete action on Judge Roberts’ nomination, in time for him to join the Court by the start of its new term, October 3. By any standard, that is a fair goal. What is not fair and what is, quite frankly, a little curious is for some of our colleagues who, before even having heard a single word of testimony, have already come up with excuses as to why we should depart from this historical standard. It is disturbing that they seek to justify so far in advance why the Court should begin its proceedings at less than full strength.
For his part, Grassley also denounced even minor delays for Supreme Court confirmations. In July 2005, he lamented on CNN, “I think that we have elongated debates way beyond what’s constitutionally necessary to fulfill our role of advice and consent.”
3. We Shouldn’t Let Obama Be The One To Shape The Court
A final argument offered by the duo is that it would be inappropriate for President Obama to mold the court because his priorities are wrong. “It is today the American people, rather than a lame-duck president whose priorities and policies they just rejected in the most-recent national election, who should be afforded the opportunity to replace Justice Scalia,” they wrote.
The 2014 Senate elections, however, were not a national referendum of President Obama. While Republicans picked up nine seats, seven of which were in states carried by Romney in 2012, voters in large states like California, Florida, New York, and Ohio did not have any Senate elections at all. And, according to McConnell, the duly elected president should absolutely be able to shape the court
In March 2005, McConnell told CNBC’s Kudlow & Company, “I think the president is entitled to an up-or-down — that is simple majority — vote on nominations, both to his Cabinet and to the executive branch and also to the judiciary. The filibuster was not used for 200 years. The country did just fine. Sometimes the court would jag off to the left, and sometimes it would slide over to the right. Presidents trying to mold the Supreme Court is nothing new. It’s not inappropriate. And we need to get back to tradition, and the tradition is a majority is enough to confirm a judge.”