Before news of the death of Supreme Court Justice Antonin Scalia had fully spread Saturday, Senate Majority Leader Mitch McConnell, R-Ky., was already politicizing the tragedy.
“The American people should have a voice in the selection of their next Supreme Court justice,” he said. “Therefore, this vacancy should not be filled until we have a new president.” Other conservative political leaders and writers soon chimed in supporting that view.
McConnell and his cohorts are wrong on timing, and wrong on precedent. At the least, Scalia deserved to be honored for his service before those whose political careers seem to hinge on furthering political gridlock and animus in Washington had an opportunity to push their agenda.
Scalia’s sudden passing Saturday during a hunting trip in Texas certainly comes as a shock. While we didn’t often agree with his opinions — against gay marriage, in support of Citizens United, in opposition to the Affordable Care Act, to name a few — he was an unabashed conservative who never shied from standing by his convictions, even when they put him at odds with the views of strict constructionists. Nonetheless, he was clearly the conservative extreme of Ronald Reagan’s three appointees. The other two being Justices Sandra Day O’Connor and Anthony Kennedy.
His death adds fuel to an already incendiary presidential campaign and puts greater emphasis on the high stakes of this election. But naming his successor should not be the task of the next president. It is the constitutional obligation of those now serving in the White House and on Capitol Hill to fill this vacancy. To defer, while catering to the wishful expectations of those hoping for a wholesale shift in political power come November, would be a dereliction of duty. It also would be a break from precedent. Despite the contentions of some who support McConnell’s views, history is replete with examples of lame-duck presidents who have filled high-court vacancies and struggles to find examples of those who shirked such an obligation.
President Woodrow Wilson, for example, filled two Supreme Court vacancies during his final year in office in 1916, nominating Louis Brandeis to replace Joseph Lamar Rucker, who died in January, and John Clarke to replace Charles Evans Hughes who resigned in June. Both nominations were confirmed that same year.
Even in times of divided politics, Supreme Court vacancies were filled. Kennedy himself was confirmed during an election year by a Democratic-controlled Senate, although he was Reagan’s third nominee (the others being Robert Bork and Douglas Howard Ginsburg) to replace the retiring Louis Powell.
It’s also worth remembering that the last justice to die in office was William Rehnquist who passed away in 2005. His successor, John Roberts, was confirmed within 30 days.
Moreover, the nation can’t afford to wait. The Supreme Court is midway through a session that faces landmark decisions on abortion, voting rights, public employee unions, environmental protection and the like. The potential for 4-4 deadlocks is high. The next president won’t be sworn in until January and, most likely, would need time to make a nomination. Thus, heeding the advice of McConnell and others would require leaving the seat vacant for a year or more.
It doesn’t take a strict constructionist to see that that is not what our founders had in mind.