The death of U.S. Supreme Court Justice Antonin Scalia created a vacancy on the court and, as the U.S. Constitution mandates, the president must nominate a replacement. Despite the political firestorm Scalia’s death has ignited because the nation is in the midst of a nasty presidential election campaign, the president is obligated to act and the U.S. Senate is required to debate and vote on the president’s nominee.
Article II, Section 2 of the Constitution is clear:
“... and he shall nominate, and by the Advice and Consent of the Senate, shall appoint .... Judges of the supreme Court …”
Shall nominate. Shall appoint.
The only wiggle room in those words is being created by the political gamesmanship of Senate Majority Leader Mitch McConnell and by Republican presidential candidates who are only too happy to twist the meaning of Article II in order to pander to primary voters. To be sure, if the situation were reversed, Democrats would do the same thing, and it would be just as wrong.
Even North Dakota’s Republican Sen. John Hoeven is marching in lockstep to McConnell’s divisive rhetoric by repeating the thin-as-tinfoil boilerplate that “the people” should have a say in Scalia’s replacement. The logic is that waiting for a new president allows voters to influence the direction of the court. That might be a popular ploy, but it’s not what the Constitution says about the process. Hoeven knows that, or he should.
There are all sorts of precedents of presidents tapping nominees for the high court in the last years of a president’s term and/or in an election, the latest being Ronald Reagan’s nomination of Anthony Kennedy. Kennedy was confirmed 97-0 in 1988 by a Democrat-controlled Senate.
President Barack Obama should name his nominee soon. The Senate should take up the nominee, have a vigorous debate and vote up or down. Blocking debate would be another black eye for the Senate majority that has developed a unique proclivity for self-inflicted black eyes. Stonewalling also would be politically risky for Republicans who have embraced the role of obstructionists. They might pay for it at the polls in November in those states where Republican senators already face tough re-election campaigns.
But whether the motivator is constitutional correctness or political opportunism, the business of replacing Justice Scalia should proceed.
Forum editorials represent the opinion of Forum management and the newspaper’s Editorial Board.