Should the Senate act on filling Justice Scalia’s seat? No!

Opinion, NakedLaw, News, Politics

The unexpected death of Supreme Court Justice Antonin Scalia on February 13 has opened up a partisan debate between President Barack Obama, who has indicated that he will nominate someone to fill the vacant seat, and the Republican-controlled Senate, which has vowed not to act on any such nomination. At stake is the ideological makeup of the Supreme Court, which in the wake of Scalia’s death, is now deadlocked with four conservative justices and four liberal ones.

The following article represents the “con” argument; click here for the “pro” argument.

Without question, the Senate should delay

President Obama proclaimed that it is his constitutional responsibility to name a successor to Justice Antonin Scalia, who died February 13. A great many Republicans and conservatives disagree: This Supreme Court appointment should most definitely wait until after Obama has left office.

What the Constitution says

“There’s no unwritten law that says [nominating a Supreme Court justice] can only be done on off years—that’s not in the constitutional text,” says Obama, who’s clearly trying to stake out the constitutional high ground.

But while the president can cite his constitutional authority to name a new Supreme Court justice, the Senate has a constitutional responsibility, too, which is to “advise and consent” on the president’s nominee. And as Senate Majority Leader Mitch McConnell has noted, “Presidents have a right to nominate, just as the Senate has its congressional right to provide or withhold consent.”

So as much as Obama would like to portray this as a case of the Republican-controlled Senate obstructing the president’s constitutional duty, it just doesn’t wash. Each side has a constitutional obligation, and it’s clear that the Senate can play its role by withholding consent.

Not in an election year

Within hours of Scalia’s passing, Republicans on Capitol Hill indicated they will not consider anyone nominated by the soon-to-be lame duck.

Republican Sen. Chuck Grassley of Iowa chairs the Senate Judiciary Committee and says it’s been “standard practice” that Supreme Court judges not be nominated and confirmed in an election year. This is especially true at a time when our nation is so divided.

“The American people should have a voice in the selection of their next Supreme Court Justice,” Senate Majority Leader Mitch McConnell of Kentucky said in a statement. “Therefore, this vacancy should not be filled until we have a new president.”

What’s good for the goose…

Interestingly, Obama’s own vice president officially supported such a delay in an election year. In 1992, Joe Biden said it was “essential” that the Senate refuse to confirm a George W. Bush nominee until the presidential election was over.

As then-chairman of the Judiciary Committee, Biden maintained that there should be a “different standard” regarding Supreme Court vacancies that “occur in an election year.” In 2016, Republicans couldn’t agree more, particularly considering Obama’s deplorable track record of circumventing Congress to push his own agenda through the court system.

The leader of the free world/constitutional scholar himself once felt the same way, too. In 2006, Obama filibustered and voted against Bush appointee Samuel Alito, who was ultimately confirmed. Now, according to White House Press Secretary Josh Earnest, the president “regrets” his actions.

“Looking back on it,” says Earnest, “the president believes that he should have just followed his own advice and made a strong public case on the merits about his opposition to the nomination that President Bush had put forward.” Actions speak louder than words, Mr. President.

There is too much at stake

The Senate’s Republican majority should absolutely delay an appointment by Obama, which would threaten the core convictions of many conservatives. In District of Columbia v. Heller, the Supreme Court upheld the right of Americans to own a handgun by a 5-4 margin. Similar 5-4 splits have occurred on heated topics from abortion to campaign financing.

It’s 2016. Time for the American people to elect a new president. Until Obama is out of office, and the nation can begin rebuilding what the last eight years have destroyed, no decisions should be made regarding this very important SCOTUS vacancy.

The views and opinions expressed here are those of the author and do not necessarily represent those of Avvo.

Click here to read a dissenting opinion