The death of Supreme Court Justice Antonin Scalia is, by any measure, a great sorrow for his family, a source of deep sadness for his colleagues and a tremendous loss for the nation’s jurisprudence. Agree or disagree with his strict constructionist reasoning and deeply conservative ideology, few can argue with Justice Scalia’s passionate commitment to the rule of law and the vitality of the Constitution.
What Justice Scalia’s death should not be is an occasion for a Constitutional crisis fomented by shameful political grandstanding, reckless demagoguery and dangerous disregard for the very clear Constitutional principles that govern filling Supreme Court vacancies. Article II Section 2 of the Constitution of the United States declares that the President of the United States “shall” nominate justices of the Supreme Court with the “advice and consent” of the United States Senate. Nothing about this clause is obscure.
Unfortunately, some politicians showed outrageous disrespect for Justice Scalia by announcing, within hours of his death, that they would obstruct any nomination that President Obama makes to fill the seat vacated by Justice Scalia’s death. In so doing, they clearly deny the authority and duty of the President, and they abridge their own legal duty to “advise and consent” in a timely way.
Members of the United States Senate take an oath of office to uphold the Constitution. Those Senators who have vowed to obstruct the Supreme Court nomination process should resign their seats immediately. They have indicated a clear intent to violate their oaths of office. Moreover, they raise a dangerous spectacle of destabilizing the balance of powers established by the Constitution by flagrantly demeaning and disparaging the Constitutional authority of the President. It’s one thing to reject a nominee he presents after fair consideration; it’s quite another to announce a flagrant plan to obstruct the nomination no matter the qualifications of the candidate.
In the same vein, presidential candidates who call for obstructing the nominating process clearly display a level of contempt for Constitutional government that is breathtaking. How can any candidate stand for election to an office that requires an oath to uphold the Constitution if a large premise of the candidate’s campaign is to undermine the Constitution and the presidency?
Both the senators and candidates who are engaged in this wanton effort to thwart the duly authorized nominating process have taken the position that the nomination must wait for “the next president” on the theory that “the voice of the people” must be heard. What a travesty! President Obama is the current president, elected twice by “the voice of the people.” Nothing in the Constitution says that a president’s duties wane in his final year in office. Nominating a new justice for the Supreme Court is not like holding back discretionary legislation. Filling the seat is essential for the proper functioning of our government.
Of course, naked political motivations are the entire and only reason for this mess. Those who are trying to thwart the nomination have the arrogant belief that they will win the presidential election and thus be able to appoint a justice of their liking. In so doing, they are creating a political and ideological trap for Scalia’s successor. No Supreme Court justice should be beholden to such circumstances. Jurists and lawyers of all ideologies should reject this pathetic manipulation of the vital role of the Supreme Court in American life. The intemperate and shameful political grandstanding of just the last 48 hours taints any nomination coming now or later — any nominee would be risking his or her ultimate reputation for independence and arms-length legal reasoning, appearing, instead, to be a stooge of one side or the other.
The obstructionists claim “80 years of precedent” to support their view that a “lame duck” president should not make a nomination in an election year. They are so wrong! First of all, there are few precedents for the death of a Supreme Court justice in office, let alone in an election year. The implication of the “80 years of precedent” claim is that President Obama deliberately picked this particular moment to make a nomination. This affront to common decency — the implication that President Obama somehow manipulated the process to create this vacancy — is only topped by the complete lack of common sense and truthfulness. Death happens on nobody’s schedule. The duty of both the president and Senate is not to hurl accusations about who killed Scalia in an election year (and, oh my, conspiracy theories are already rampant!) but how to proceed as responsible, ethical leaders of the republic.
The obstructionists are also simply wrong on the facts about those 80 years. Across the history of the Supreme Court, many justices have been nominated and confirmed during election years, and as recently as the appointment of Justice Anthony Kennedy in 1988. The obstructionists don’t seem to care much about facts or duty.
We the People deserve better, and we must demand that the politicians stop this ugly game of manipulation of bedrock institutions of government. It’s been a long time since certain political leaders actually showed the kind of leadership we need. Instead of leadership, we get pandering, demagoguery and obstruction. Congress is at a standstill. Legislation cannot move forward. Presidential candidates spend more time insulting each other than laying out real policy solutions.
Ultimately, this nation is ill-served by the toxic politics we’ve witnessed for too long. Whatever your party, whatever your candidate preference, We, the People, must insist on an end to this ugly and dangerous political situation.