Senate Majority Leader Mitch McConnell's proclamation that Republican senators will block anyone nominated by President Obama to replace Supreme Court Justice Scalia was followed by immediate condemnation from legal experts. Ignoring those objections, McConnell doubled down, making clear that GOP senators would not only vote down an Obama pick but would not even hold hearings or meet with prospective nominees. The American Constitution Society (ACS), one of the nation's leading legal organizations, has been quite clear from the beginning: The GOP's efforts to hinder the judiciary are not only harmful to America--they are disrespectful of basic constitutional precepts.
In the face of unprecedented Senate obstructionism, attorneys, law professors, historians and others dedicated to upholding the Constitution have banded together to set the record straight. Last week, 33 constitutional law scholars organized by ACS wrote an open letter explaining that the president has a constitutional duty to nominate, and the Senate has a constitutional duty to consider in good faith, Supreme Court justices. They said, "There is no exception to this provision for election years" as GOP senators would have the public believe. Noted constitutional law professor and ACS Board member Erwin Chemerinsky elaborated by referencing historical tradition in two recent press calls, saying, "Over the entire course of American history, 24 times presidents have nominated an individual in an election year. And in 21 of 24 instances, the nominee has been confirmed by the Senate."
In an op-ed, University of Chicago law professor and former ACS Board member Geoffrey Stone added that "in the years since 2000 every one of . . . four [Supreme Court] nominees was confirmed by the Senate, and they were confirmed with appreciable bipartisan support." He wrote in TIME that "the Senate's job in the confirmation process is to advise and consent, not to obstruct for the sake of partisan political gain," and when asked by The Washington Post about Senate Republicans' refusal to consider an Obama nominee, he replied, "I would say they are violating the Constitution." Another ACS member, University of Colorado law professor Melissa Hart, told The Denver Post that leaving the Supreme Court vacancy open until after the next president is elected "would essentially shut the Supreme Court down for two years," creating a "monumental crisis." Even experts on the other side of the aisle are concerned about the Senate's obstructionist tactics, including former Bush administration ethics lawyer Richard Painter, who wrote on ACSblog, "We do not take a 'time out' from orderly government just because it is an election year." (You can see other reflections on the vacancy here.)
As Republican senators continue to dig in their heels, ACS lawyer and student members around the country are organizing to educate the public and speak truth to political leaders about the Senate's "advice and consent" role and the importance of restoring the Supreme Court to full power. Considering President Obama's history of appointing unquestionably qualified judges with sterling reputations, the confirmation process should not be as contentious as it has been. Republican senators should know that all efforts to sabotage this process will be met by those committed to ensuring the Constitution is paid proper respect.