The Absurdity of Senate Republicans' Efforts to Scuttle a Supreme Court Nomination

"A novel and absurd notion," is how leading legal scholars and historians describe Senate Republicans' obstinate refusal to consider President Obama's forthcoming nominee to fill the Supreme Court vacancy created by Justice Antonin Scalia's death.

I couldn't say it better myself. Even Senate Republicans in moments of candor acknowledge the absurdity and hypocrisy of their stand. Sen. Lindsey Graham (R-S.C.) admitted this week that he and his colleagues are defying longstanding Senate precedent by blocking a potential justice. Similarly, Sen. Ron Johnson (R-Wis.) told a radio talk show host that if the president were a Republican, there wouldn't be delay, putting the lie to the idea that a "lame duck" president is the issue.

The scholars, who include ACS current and former Board members Erwin Chemerinsky, Pamela S. Karlan, and Geoffrey R. Stone, eloquently explain why Senate Republicans are absurdly wrong on this matter. It comes down to what the Constitution says, and what prior Senates have done. AEI's Norm Ornstein, a longtime scholar of Senate procedure, was instrumental in coordinating the letter.

It is standard practice, the scholars write in a March 10 letter, that "when a vacancy occurs on the Supreme Court to have a president, whatever the stage in his term, to nominate a successor and have the Senate consider it."

Ornstein and the scholars continue, "If we buy the logic that decisions made by 'lame duck' presidents are illegitimate or are to be disregarded until voters make their choice in the upcoming election, that begs both the questions of when lame duck status begins (after all, a president is technically a 'lame duck' from the day of inauguration), and why senators up for reelection at the same time should not recuse themselves from decisions until the voters have decided whether to keep them or their partisans in office."

The scholars correctly note that the Senate can "deny" the president's nomination, but only after a full and fair hearing, which means hearings in the Judiciary Committee and full debate on the Senate floor. Anything short of that the scholars conclude is a serious and unprecedented breach of "the Senate's best practices and noblest traditions."

Read the scholars' full letter here. For more commentary on this matter see this open letter from more than a dozen of the nation's top constitutional law scholars, organized by ACS, and these guest posts for ACSblog. Also, on Tuesday, March 15, a panel of experts including Ornstein, will discuss the Senate's constitutional duty to provide advice and consent for a forthcoming Supreme Court nominee. Sen. Amy Klobuchar (D-Minn.) will give opening remarks. Click here for details of the ACS panel discussion.