Many of us are apprehensive about the seat left vacant by the death of Justice Antonin Scalia.
Senator Mitch McConnell issued a statement that the American people deserve to speak through the 2016 election and that the Senate will not confirm a nominee this year.
But what if the GOP senators can't withstand the vitriol that is coming their way and want to cave? If so, can McConnell keep his forces in order?
Bill McGurn explains in today's Wall Street Journal why a battle over a Supreme Court nominee could be beneficial to the GOP (along with possibly saving the Court from becoming a post-Constitution entity).
Yesterday was the first day in three decades that the Court has convened with Justice Scalia's being there. McGurn reflects:
In the Senate, his vacant Supreme Court seat offers Majority Leader Mitch McConnell an unexpected twofer: an opportunity to thump Barack Obama for his lawlessness, and to obtain some measure of redress from a Democratic Party that has never paid a price for the way it vilified Justice Scalia’s friend Robert Bork.
And amid the public hand-wringing over the incivility and nastiness of the modern Supreme Court nomination process, a famous Scalia dissent returns to cut through the fakery. If nominees are now treated in a crude and political manner, he suggests, it’s because the Supreme Court itself has asked for it.
Go back to Ronald Reagan’s nomination of Judge Bork for the Supreme Court in 1987. Ever since Senate Democrats voted him down following an unprecedented campaign of smear and calumny, Washington has abided by a glaring double standard. It is alive and well in a President Obama (a former professor of constitutional law, no less!) who now scolds the Senate about its solemn duty to confirm his pick for the court but who as Sen. Obama in 2006 joined an 11th hour attempt to filibuster Samuel Alito.
Some GOP senators apparently fear that an outright refusal to look at any Obama nominee will make them vulnerable to accusations of partisanship. They are mistaken. In a presidential election year, this is a good fight for Republicans, and all they really need is the confidence to take their case to the American people.
McGurn argues that there is a twofold case to be made. President Obama has made end runs around the Constitution throughout his administration. Using its advice-and-consent power, McGurn writes, the Senate can check some of his abuses. McConnell, by the way, isn't proposing anything that is not fully constitutional: the Senate does not have to give a nominee an up or down vote.
The second reason that the battle will be beneficial, according to McGurn, revolves around a recognition of how partisan the Court has become. It has also become a Court that substitutes the beliefs of several of the justices for constitutional reasons. McGurn credits the Court for helping to launch the culture wars with its Roe v. Wade decision on abortion that was never mentioned in the Constitution and which would likely be settled by now if the Court had not spoken and the issue had been referred to the voters.
Once again, no one saw the effects [more clearly than did Justice Scalia. In his dissent from Casey v. Planned Parenthood (which “upheld” Roe by completely rewriting it), he argued that the confirmation process for justices we all like to decry is no more than the American people recognizing that their elected legislatures no longer count for much. If Supreme Court justices really see “constitutional adjudication” as consisting “primarily of making value judgments,” Mr. Scalia wrote, then a democratic people should be using the nominations process to pressure them—so that the values that prevail are the people’s and not those of nine unelected men and women in robes.
This is going to be a battle that tests the courage of GOP senators and will once and for all answer the question as to what the voters got when theyelected a Republican Congress. As Charles Krauthammer wrote (subscription required):
If McConnell succeeds, he will have resoundingly answered the “what did we get for 2014?” question. Imagine if the Senate were now in Democratic hands. What we got in 2014 was the power to hold on to Scalia’s seat and to the Court’s conservative majority