Supreme Court Justice Antonin Scalia's unexpected death has triggered a furious debate whether President Obama should appoint a successor.
The idea that a president with more than 10 months left in his term shouldn't do so is curious, but let's not pretend this is a serious tussle over constitutional intent.
This is about Republicans, who have a majority in the U.S. Senate, flexing their political muscles to prevent a Democratic president from reshaping the High Court, as his right. And yes, Republicans have the right not to confirm a nominee.
But it is breathtaking that Senate Majority Leader Mitch McConnell sent out a statement shortly after Scalia's death decreeing that "the vacancy should not be filled until we have a new President." He's not arguing Obama's nominee is unqualified -- there is no nominee yet, of course. McConnell has declared that the Senate shouldn't confirm anyone, presumably even if Ronald Reagan came back to life armed with a law degree.
McConnell's stance is particularly questionable when you consider a 2007 piece in the National Review, the conservative journal of record. After the Democrats won control of the U.S. Senate in '06, there was great Republican consternation that then-President George W. Bush couldn't get a SCOTUS nominee confirmed.
National Review judicial columnist Edward Whelan argued thusly:
Briefly put: Under long-established Senate practice, every Supreme Court nominee is afforded an up-or-down vote on the Senate floor. A departure from that practice would threaten to impose severe political costs on Senate Democrats. In a competently run confirmation campaign, a strong proponent of judicial restraint will win majority approval in the Senate, with votes to spare.
In 1988, the Senate followed the Whelan rule and voted confirm Reagan's Supreme Court nominee, Anthony Kennedy, on a 97-0 vote. This was during Reagan's last year in office, and yes, McConnell was one of the 97 votes.
But things change. Now a Democrat is president with a Republican Senate. And so has Whelan's argument. Not long after Scalia's death, he posted this:
Senate Republicans would be grossly irresponsible to allow President Obama, in the last months of his presidency, to cement a liberal majority that will wreak havoc on the Constitution. Let the people decide in November who will select the next justice.
Whelan seems vaguely aware that this might contradict his previous position, so he throws this in here:
There has never been an election-year confirmation that would so dramatically alter the ideological composition of the Court.
Gotcha. Keep moving those goalposts, sir.
H/t Jen Eyer.