Stop Damaging the Supreme Court

The Republican majority in the Senate has the power to refuse to consider any nominee that President Obama names to replace Justice Scalia on the Supreme Court. There is no mistake about that. Whether they have a Constitutional, historical, or ethical justification to do so is a separate question.

The President (Article II, Section 2) "shall appoint . . . Judges of the supreme Court." The president is not given the option not to make an appointment. Thus, leaving this for the next president would be an abdication of his Constitutional responsibility. The Senate is charged to give "advice and consent" -- to confirm or reject a nominee. The Constitution sets no time limit for Senate action, but refusing to consider and vote would be an abdication of its responsibility.

Historically, the current situation is not the first in which a vacancy on the court has occurred so late in a presidency. In fact, 14 of the 112 justices who have served on the court (12.5 percent) were nominated and confirmed in the last year of a president's term. Three of these were Chief Justices (17.6 percent of the total serving as Chief Justice). Altogether, 11 of our 44 presidents (25 percent) have nominated someone to fill a court vacancy in the last year of their term of office. All of their nominees were confirmed (though one was a recess appointment confirmed in the next Congress). Nine were confirmed in less than one month and no confirmations took longer than five months. Lack of historical precedent and insufficient time are thus not valid arguments for refusing to consider a nominee to fill the court's vacancy. Nor is the current situation the first in which a president of one party has nominated a justice subject to confirmation by an opposition party. Grover Cleveland did it twice, and Dwight Eisenhower did it once.

On ethical grounds, judging a nominee unfit to serve -- irrespective of qualifications -- solely because that nominee was named by the sitting president ignores the Constitutional oath to "well and faithfully discharge the duties of the office" of Senator. Had the Senate applied this test in the past, Oliver Ellsworth (nominated by Washington) and John Marshall (nominated by John Adams), both near the end of their terms, would never have become Chief Justices. The former established the precedent of a majority court ruling (rather than separate opinions) and the latter established judicial review and sculpted the power of the court over more than a third of a century.

Second, leaving the court with eight justices for over a year obstructs the business of the judicial branch. Key cases may result in four-four ties or be left to be re-argued in the next court, in essence tainting the court with the gridlock that has plagued the Congress in recent years.

Third, carrying out a politically motivated action will further weaken the court in the view of the people. The public's approval rating of the court, which stood at 62 percent before the 2000 election, fell to 45 percent by 2015. Further politicizing the court, when it is often viewed by the public as the last bastion for nonpartisan reasoning, would seem to be a dangerous action in a nation questioning whether our governing system works.

Finally, the Senate would not be acting in this fashion if the current occupant of the White House was a Republican. The decision to refuse to "advise and consent" on a court nominee because it is the last year of an administration is being made not on any moral principle but on political expediency.

Senate Republicans may legally work their political will, whatever they decide that to be. Our system sanctions the use of such power by those in the majority. But, as Jefferson put it in his First Inaugural, "though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable" in the broader context of republican government. For their part, Senate Democrats and the President should also be accountable for how they act in the months ahead.
Using the current situation for political gain, rather than seeking a way to move forward to do the public's business, would be another form of shirking their own constitutional responsibility.

Americans have a right to expect that both parties will seek to strengthen the court. Applying rigid ideological tests in deciding whom to nominate or even consider does a disservice to concept of a nation governed by laws and not men. Using power solely to score political points cannot be done without more damage to an institution that best serves the country without the taint of partisan warfare.