The unexpected death of Supreme Court Justice Antonin Scalia set into play a complex chess game between two branches of government that must work together to select a member of the third branch.
Constitutional scholars and interested Americans alike should be excited about an opportunity to see the system of checks and balances created by the founding fathers 229 years ago work as it was intended.
But, unfortunately, it looks like Congress will instead show off its inability to carry out its constitutional duties that are so basic a task that they have occurred over 50 times in history with very few hiccups.
The same day Justice Scalia died, President Obama announced he would exercise his constitutional duty to nominate a replacement. Within hours, Senate leader Mitch McConnell, a Republican from Kentucky, declared he would stall a vote on any appointment until after a new President is sworn in next year.
Several senators, including the two running for President in Marco Rubio and Ted Cruz, have piled on the bandwagon claiming President Obama would be doing something unusual in making an appointment to the Supreme Court in his last year in office.
The whole argument against an appointment is disingenuous, at best. It’s nothing more than a flat out partisan political move to allow Republicans one more shot at choosing their own nominee next year.
Throughout American history, presidents have made appointments to the highest court during election years, and a few times even after their successor had won their own presidential election.
As recently as 1987, lame duck President Ronald Reagan nominated Anthony M. Kennedy in November, just 3 months shorter than the timeframe we’re facing now. At that time, President Reagan said he expected Mr. Kennedy “could be confirmed quickly in a spirit of bipartisan cooperation.” The confirmation process took only 65 days.
Unfortunately, no such spirit of cooperation currently exists in Washington. It seems that even the most procedural of tasks takes on a war footing.
The Constitution clearly states that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint” judges, including those to the Supreme Court. The advice and consent clause has historically been used to block nominees that were too radical in their views or when some issues in their past caused concern. There may be some valid reasons to block a potential Justice, but to publicly defy the President by preemptively refusing to even hear ANY nomination is a shirking of the Senate’s constitutional duties.
Strict constructionists – those that interpret the Constitution to the letter as it was intended by the drafters in 1787 – should support the position that the President has the right to make an appointment now. One of those that is having to change his position is presidential candidate Ted Cruz. Senator Cruz has historically argued for strict interpretation of the Constitution but now has conveniently changed his views to argue the President should wait.
Americans should be embarrassed by the conduct of our Senators. Instead of using this opportunity to show our children and the World how well our democracy works, they have chosen to show only it’s worst quality: partisan gridlock.
Leaving the Supreme Court with only 8 Justices would very likely result in 4-4 tie votes in very important cases pending before the Court. In the case of a tie, the lower court’s ruling would be upheld but no national legal precedent would be set. That would leave states with unequal results in cases that could include the validity of Obamacare, campaign finance reform, and abortion rights. Of particular interest to the Latino community is the case of United States v. Texas, a challenge to President Obama’s plan to defer deportation for nearly 5 million undocumented immigrants. A tie vote would defeat the plan in parts of the country and leave the door open for more lawsuits in the future.
President Obama was twice elected. In 2012, he received more than 62.6 million votes. He is the only person in this debate elected by the entire country yet a few senators elected from single states are attempting to thwart his constitutional powers. Senator McConnell, for example, was elected with only 806,000 votes – less than 1/100th the votes President Obama received – but he’s arguing that the President is not representing the will of the people.
President Obama’s nominee, who ever it may be, should be given a proper hearing and a
vote. That’s the way our system should work.
The same politicians that demand the world acknowledge America’s “exceptionalism” should show by example that we have earned that distinction.
Our founding fathers would be rolling in their graves if they could see what their exceptional model of government has become lately.