“Be careful what you wish for …”
Adage – author unknown
Supreme Court appointments can be a president’s most important and enduring legacy. While rarely registering on lists of voter concerns, the untimely passing of Justice Scalia has made such appointments toxic political fodder for presidential wannabees!
Under the Constitution, a president’s term is four years and, pursuant to Article II, Section 2, he/she “shall nominate and, by and with the Advice and Consent of the Senate, shall appoint … Judges of the Supreme Court”. While there is no time-frame within which the Senate must “advise and consent”, approving or disapproving any nominee, its members have a moral obligation to do so within a reasonable time, based solely on the candidate’s judicial competency and temperament and not premised on any political litmus test!
Clearly, President Obama would like to leave office having placed a third justice on the Court. Knowing any nominee must be approved by a Republican Senate, he should look for a jurist who, while not perhaps an ideal candidate to either the right or the left, has had broad credibility and support across party lines.
Senators Cruise’s, Rubio’s and McConnell’s comments, “the Republican-controlled Senate should ignore any nomination sent by Mr. Obama to Capitol Hill,” are uncalled for and a repudiation of the Senate’s Constitutional responsibility as well as principals championed by Anton Scalia.
Cruise’s arrogant contention he was not about to let President Obama change “our” court also demonstrates his disdain for the fact the Supreme Court belongs to the American people, not a cabal of vocal ideologues!
Further, no Senator should have unilateral power to prevent an up-and-down vote on any presidential nominee. Such abuse of power disenfranchises other Senators and is, thus, an indirect threat to the concept of one-man-one-vote.
During their recent GOP debate, the participants advocated delaying approval of any nominee during a president’s last year in office until after the election of his successor. Interestingly, Justice Anthony Kennedy was confirmed in 1988, the final year of Ronald Reagan’s term!
While agreeing in principal, only Governor Kasich acknowledged such a tactic runs the risk Republicans could lose the election and end up with a far more liberal justice than would likely result from a reasonable compromise between President Obama and the current Senate.
Wisely, Hillary Clinton and Bernie Sanders somewhat distanced themselves from the fray suggesting, in Senator Sander’s words, “Republican colleagues in the Senate have a very interesting view of the Constitution of the United States. Apparently they believe that the Constitution does not allow a Democratic president to bring forth a nominee to replace Justice Scalia.”
In the short run, Scalia’s death potentially impacts decisions in several high-profile cases:
• Can race be considered in college admissions?
• Are union “fair share” dues constitutional?
• Does requiring doctors to have local hospital admission privileges place an undue burden on women seeking an abortion?
• Can voting populations be substituted for total populations when voting districts are drawn?
• Validity of birth-control mandates under Obamacare.
Delaying a near-term confirmation opens numerous minefields for the GOP Right, Democrat Left and, more importantly, the nation.
• Republican President and Senate (with less than 60 seats). Democrats filibuster any nominee unless Republicans exercise the so-called “nuclear” option; wherein only 51 votes are needed … exercised by Democrats when they controlled the Senate to approve lower court judicial nominees.
• Republican President and Democratic Senate. A Scalia-like justice won’t be approved!
• Democratic President and Senate (with less than 60 seats). Republicans filibuster any nominee unless Democrats again exercise the “nuclear” option.
• Democratic President and Republican Senate. No far-right or far-left justice will be approved.
• Republican President elected while Democrats take the Senate. While the new Senate takes office on January 3rd, the new president is not sworn in until January 21st. During the interim, Obama could nominate a liberal justice who could then be approved on a 50-50 vote with Vice President Biden breaking the tie.
• Then, there is the specter of a Bloomberg third-party victory!
For the benefit of America, the Republicans must rethink their knee-jerk strategy and work with the President to confirm in a timely manner a judicially-competent, non-ideological nominee who will serve with no political agenda!
