Antonin Scalia is dead. Is it legitimate for the Republican-controlled Senate to refrain from confirming a replacement for the late Supreme Court justice until a new president is elected, as Ted Cruz, Marco Rubio, Ben Carson and others on the right have urged? Or does the Senate have an obligation to approve a qualified nominee put forth by President Obama, as many on the left argued as soon as news of the death broke?
The debate on Twitter was instantaneous. “The Democrat-controlled Senate confirmed Ronald Reagan's nominee to the Court, Anthony Kennedy, in his last year in office: 1988,” the liberal journalist Glenn Greenwald observed. Jim Antle, a paleoconservative, retorted with a Robert Bork reference, writing, “And it wouldn't quite have been in his final year if first choice had been confirmed in 1987.”
Charles C.W. Cooke of National Review declared that “the process outlined in the Constitution gives the Senate a veto,” and that “it’s no more or less fair to say that Obama should get his way than to say the Senate should.” There is truth to that position. If the Senate finds Obama’s nominee substantively unfit for the Supreme Court, it should decline to consent to the nomination, per its constitutional role.
But Ted Cruz crosses a line into illegitimate territory when he writes:
Justice Scalia was an American hero. We owe it to him, & the Nation, for the Senate to ensure that the next President names his replacement.— Ted Cruz (@tedcruz) February 13, 2016
That isn’t a call to fulfill the “advice and consent” function and to reject a bad nominee. It is a naked call for a strategic delay. Former Cruz communications staffer Amanda Carpenter, a conservative pundit, offers similarly wrongheaded advice:
Senate must move quickly to make it known that no nominee will be confirmed this year. Now. Do not let it become about whoever Obama names.— Amanda Carpenter (@amandacarpenter) February 13, 2016
For all the pro-liberals screaming in my feed: The Senate has no obligation, none, to confirm a nominee. That's their power.— Amanda Carpenter (@amandacarpenter) February 13, 2016
But the Senate does have an obligation to fulfill its “advice and consent” obligation. Says the Constitution, the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court...” A preemptive rejection of any possible Supreme Court appointment is self-evidently in conflict with that obligation. The phrase “do not let it become about whoever Obama names” makes that explicit.
A man as versed in the Constitution as Senator Cruz should be embarrassed to posit that the nation could owe a debt to Scalia, that a “debt” to a dead man should play any role in a process governed by the Constitution, or that a sitting president’s nominee should be preemptively rejected before his or her identity is known. There is no agreed upon standard of what legitimate advice and consent entails. But any standard that rejects a nomination before it is even made fails the laugh test.
James Madison’s Constitution is not a living, breathing document that changes in meaning as an election approaches. A president is no less legitimate as a lame duck. The Framers intended for the Senate to give up-or-down votes based on a nominee’s merit, however it’s defined. The timing of an election should play no role. Constitutional conservatives should reject the contrary notions being advanced by opportunistic partisans, even if they ultimately side with those same partisans in finding Obama’s eventual nominee unworthy of being confirmed on the merits. Few truly believe that the Framers would regard “I want to wait until the next president is chosen” as a legitimate reason to block a Supreme Court appointment.
Now ponder a contrary norm, where it would be seen as legitimate for Senators to delay judicial nominations pending a political landscape is more favorable to the majority.
The harms of that approach are self-evident. Over time, the length of delays would inevitably increase. Mounting vacancies would cripple the ability of the judicial branch to function. Even more than is presently the case, prospective jurists would be chosen for their likely votes on a small number of hot-button issues. In the long run, everyone would be worse off than they would under the norms the Framers intended and that I’m again urging: timely, up-or-down votes on all nominees, based on their merits as jurists, not the odds of getting a more ideologically favorable nominee under whoever it is that sits in the White House next.
Senators should consult their consciences and act using this standard: a nominee that would’ve gotten their vote a year ago should get it right up until January 2017.