Politicians play politics, especially during election years. Lamenting that eternal reality is akin to complaining about death and taxes.
But this rule from the U.S. Constitution’s Article II, Section 2, Clause 2 is also a constant: “He [the president] shall have the Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Councils, Judges of the supreme Court ...”
In other words, presidents make Supreme Court nominations, and senators decide whether to confirm them.
Yes, it’s a long shot for the Senate to confirm another justice picked by President Barack Obama. Conservative Republicans hold a solid Senate majority. Mr. Obama is a liberal president.
But that shouldn’t automatically delay the process of filling the void left by the Feb. 13 death of Justice Antonin Scalia.
President Obama’s repeated attempts to exceed constitutional executive authority, a troubling habit criticized even by some legal experts who lean to the left, raise fair concerns about whom he would appoint to the court.
However, the White House appeared to signal that it was seeking compromise on a consensus candidate Wednesday as news broke that Nevada Gov. Brian Sandoval — a Republican — had made the president’s short list of possible nominees.
But Gov. Sandoval said Thursday that while it was “beyond humbling” to be considered, he didn’t want the job.
And Senate Majority Leader Mitch McConnell and many other Republicans have been warning since soon after Justice Scalia’s death that President Obama shouldn’t even bother to nominate a potential replacement.
Some Democrats now decrying that defiant position took similar stands against high court appointments by GOP presidents late in their terms. That group includes Vice President Joe Biden, who as Senate Judiciary Committee chairman said in a 1992 speech on the Senate floor that if a Supreme Court opening occurred, President George H.W. Bush should “not name a nominee until after the November election is completed” — and that if he did, “the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.”
In July 2007, with a year and a half left in President George W. Bush’s final term, Sen. Chuck Schumer, D-N.Y., fired this preemptive rhetorical shot: “We should reverse the presumption of confirmation. The Supreme Court is dangerously out of balance.”
Similarly partisan perspective changes have also come from Republicans, including current Judiciary Chairman Charles Grassley. Though he now opposes holding hearings for another justice nominee from Mr. Obama, Sen. Grassley delivered this 1988 verdict on the notion of a precedent against filling high court vacancies during presidential election years: “That’s just plain bunk. The reality is that the Senate has never stopped confirming judicial nominees during the last few months of a president’s term.”
And the Senate did confirm Anthony Kennedy, a Ronald Reagan appointee, to the high court early in that presidential election year to fill the opening created by the June 1987 retirement of Justice Lewis Powell.
No, that doesn’t mean the GOP Senate must confirm another Supreme Court nominee from President Obama. But it does mean that such a nominee rates fair consideration — election year or not.
After all, if Republicans really want to honor the late Justice Scalia’s strict constructionist legacy, they should follow the Constitution’s instructions.