Rules are clear on court appointment
The debate about whether President Barack Obama should nominate and the Senate should confirm someone to fill the Supreme Court vacancy created by the death of Justice Antonin Scalia is an example of politics at its worst.
Within hours of Scalia’s death, Republicans were united in their view that Obama should leave the seat open and let his successor fill the spot on the court.
To rationalize their view that the president and Senate should abdicate their constitutional responsibility to fill the seat on the court, they used the "American people" as cover.
"I believe the Senate should not move forward with the confirmation process until the American people have spoken by electing a new president," said New Hampshire Sen. Kelly Ayotte. The Nashua Republican said in a statement that "Americans deserve an opportunity to weigh in" on the Supreme Court pick.
Ayotte has lots of company in her view, including Senate Majority Leader Mitch McConnell and the entire field of Republican presidential candidates.
It’s a virtual certainty they would all be singing a different tune were the current occupant of the White House a Republican, just as Democrats would be arguing against a nomination were the president a Republican.
The Constitution is clear about the process for filling a court vacancy: The president nominates someone, and the Senate confirms or rejects the nomination.
The world does not stop spinning in an election year, nor does the Constitution cease to be the Constitution, though you’d never know it from some of the rhetoric that’s being bandied about.
"Because actually, it’s not just for the Supreme Court, even for appellate courts – both parties have followed this precedent," Sen. Marco Rubio said on NBC’s "Meet the Press." "There comes a point in the last year of the president, especially in their second term, where you stop nominating, or you stop the advice and consent process."
PolitiFact rated that statement false.
It’s entirely common for presidents to make judicial nominations in the final months of a term. George W. Bush nominated several people to the federal bench, as did Bill Clinton before him. Ronald Reagan even got a Supreme Court appointment through in an election year; Justice Anthony Kennedy, in fact, still sits on the court.
And while it’s true that election-year Supreme Court nominations are rare, that’s only because Supreme Court slots don’t come open very often. There are, after all, only nine of them.
The notion that the Senate should wait until voters "weigh in" is a red herring trotted out for political convenience. Voters don’t elect Supreme Court justices, nor does nominating a successor to Scalia’s seat mean the public can’t "weigh in" on a choice for the Supreme Court. They regularly do so when a vacancy comes open by calling their U.S. senators to voice their opinions, regardless of the nominee.
The Constitution says what it says, and the fact that this is an election year doesn’t change that, even if it happens to be politically inexpedient for one of the parties.
If Ayotte and other Senate Republicans want to block Obama’s nomination, that’s their prerogative – but there should be hearings on the nominee and, ultimately, a vote.
Because the Constitution shouldn’t be twisted to suit the fancy of any political party.