With Supreme Court Justice Antonin Scalia’s unexpected death on Saturday, the fate of America’s highest court has suddenly become the biggest question of the 2016 election. Senate Republicans quickly united around one line: In his time left in office, President Obama should not exercise his constitutional right to nominate a successor, and if he does, the Senate will not consider it.
Although some Senators are now wavering on that line — including Senate Judiciary Chairman Charles Grassley (R-IA), who said he’d at least wait until a candidate was named to decide — Republican Presidential candidate Ted Cruz is maintaining that the Senate should refuse to hold hearings. At last night’s town hall, he gave a new reason for the refusal: Such hearings couldn’t help but be “very politicized” and “unfair to the nominee.”
When asked by town hall moderator Anderson Cooper if the President should nominate someone, Cruz first repeated a now-standard talking point: that “For 80 years it has been the practice that the Senate has not confirmed any nomination made during an election year. And we shouldn’t make an exception now.”
The line, however, is misleading. In 1988, an election year, the Senate confirmed Justice Kennedy. However, Kennedy was nominated prior to the election year — Senator Cruz is parsing to avoid a mistake he made in Saturday’s debate before being corrected by the moderator, CBS’ John Dickerson.
Although it’s true that it’s rare for Supreme Court justices to be nominated in an election year, that is largely because Supreme Court vacancies themselves are rare and have, by chance, not occurred during many election years. What there is no precedent for is holding up the process to wait for the next year’s election.
The Constitution specifically charges the Senate with providing the President “advice and consent” on nominations to the Supreme Court. As a current member of the Senate Judiciary Committee, which holds the hearings on the nominees, Senator Cruz is particularly charged with this constitutional duty.
There is nothing, however, that says a hearing to fill a vacancy on America’s highest court must be inherently political.
Scalia himself — whom Cruz called a “lion of the law” — lamented the increasing politicization of the nomination process, calling it “controversial and absurd political theater.”
President Obama has made it clear that he plans on sending the Senate a nominee, whether or not they are willing to hold hearings. In response to questions at a press conference on Tuesday, he said: “I intend to do my job between now and January 20th of 2017. I expect [the Senators] to do their job as well.”