Replacing Scalia: What part of ‘advice and consent’ is confusing?
With the passing of Associate Justice Antonin Scalia, the political universe—which was already a dumpster fire—is ablaze with talk of the president’s prospective nominee, who will almost certainly be blocked by the Republican-controlled Senate.
“This should be a decision for the people,” said Sen. Ted Cruz, R-Texas, “Let the election decide.”
It is. And it did. The people elected a Democratic president and a Republican Senate.
What were we thinking?
Clearly, we couldn’t reasonably expect that our leaders might work together in service of the American people. There’s nothing quite like groupthink with a few trillion dollars at stake.
Sen. Patrick Leahy, D-Vt., said: “It would be a sheer dereliction of duty for the Senate not to have a hearing, not to have a vote [on President Barack Obama’s Supreme Court nominee].”
In case you missed it, Article II, Section 2 of the U.S. Constitution states that the president “shall nominate, and by and with the advice and consent of the Senate, shall appoint…judges of the Supreme Court.”
It really isn’t that confusing.
It takes a president AND a majority in the Senate to appoint a Supreme Court justice.
If you’re a liberal fuming over Senate Republicans gearing up to block a progressive Obama nomination, get over yourself. Republicans have just as much of a constitutional right to withhold their consent for a nominee as the president does in selecting him or her. And don’t get too excited about a recess appointment. For the appointment to become permanent, Senate confirmation remains essential.
If you’re a conservative with the brilliant plan of keeping the Supreme Court seat vacant until a Republican wins the White House, what happens when things don’t work out in November? Justice Scalia’s seat isn’t earmarked for a conservative nominee. Is a Clinton or Sanders pick less problematic than an Obama selection?
Tactically speaking, Republicans don’t have a whole lot to lose by holding out for the election. In the best-case scenario, they win the White House and keep the Senate in 2016. Then Scalia is replaced with a justice like Alabama’s own Bill Pryor, now serving on the 11th Circuit Court of Appeals. In the worst case, Republicans lose the White House and the Senate. A Democratic president appoints someone with a more progressive track record than anyone Obama might nominate. If the election results in a split between the White House and Senate, Republicans are in the same place they’re in right now.
While I understand the political realities, maybe the president should get the “advice” from the Senate that’s mentioned right there in the Constitution?
In a nation that’s literally split down the middle on most issues, why is it so crazy to think that a Democratic president might ask a Republican Senate for input? You’re probably laughing at the very idea, but why?
With two political “teams” clearly spiraling out of control, we need justices who make good referees—willing to throw the flag when either side operates outside the bounds of the Constitution.
Obama isn’t likely to nominate another Scalia, but it doesn’t mean he couldn’t select someone who respects the rule of law more than crafting opinions to create desired partisan outcomes. He’d have to make concessions and so would Senate Republicans, but that’s why we have this constitutional setup in the first place.
If Republicans believe that no nominee is acceptable by virtue of President Obama making the nomination, then they’ve ceased being honest brokers in the process. If President Obama thinks he’s entitled to as “liberal” a nominee as he’d like, then he isn’t serious either.
Our nation’s founders built a government that isn’t easy for any one politician or party to control and that includes the makeup of the Supreme Court. They created a fragmented national leadership that’s only as just and effective as the people who put it there. Until we’re willing to work out our sincere differences like adults, don’t expect our politicians to do it either.
