Senate Majority Leader Mitch McConnell heads to the White House today to get lectured by President Barack Obama on why Republicans should let him nominate a liberal to replace the late Justice Antonin Scalia.
My Courier-Journal column explains why McConnell is right to resist. Reprinted with permission of the Courier-Journal and available in hard-copy tomorrow:
It was one of Senate Majority Leader Mitch McConnell’s finest moments. Just an hour after the unexpected passing of Supreme Court Justice Antonin Scalia was confirmed, McConnell issued a statement that “The American people should have a voice in the selection of their next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president.”
The swiftness and decisiveness of McConnell’s announcement eased the sting many felt after the loss of the justice who was the intellectual and rhetorical leader of the originalist movement, that is, interpreting the Constitution according to its original meaning and not what one wants it to mean.
Scalia was so reliable. He didn’t “grow” into his job and he didn’t “evolve.” Rather, he relentlessly adhered to textualist principles.
And McConnell’s resolute response to Scalia’s death honored the justice’s legacy by preventing — at least for now — his accomplishments from being undone.
In addition to refusing to confirm an Obama nominee before the election, Republicans should not hold any confirmation hearings. Nor should they meet with any nominee, regardless of whom Obama proposes. Even if the nominee is a member of a coveted voting block.
This is a question of timing, not qualifications. It would be impolite to the nominee and disingenuous to the country to pretend otherwise by holding hearings or “meet and greets” with senators. It’s not nice to lead people on.
And again, it’s not about the nominee. It’s about giving Americans the opportunity to pick the president they want to fill this swing vote seat on the court.
That’s what then-Sen. Joe Biden maintained in 1992: the president should not put forward a Supreme Court nominee in an election year, and if he does, the Senate should “seriously consider” not holding hearings on the nominee.
Democrats complain that McConnell’s refusal to hold a vote on anyone Obama nominates to replace Scalia is nothing but the raw exercise of power. There is some truth to that. However, that’s the nature of checks and balances. It’s one check the framers put in place to limit the president’s powers and prevent him from becoming a despot.
Obama whines that our Constitution gives him the power to nominate a justice and the Senate the duty to give “advice and consent.” McConnell, on behalf of the Senate majority, has indeed advised the president not to nominate anyone before the upcoming election. And he has advised the president that the Senate will not consent to that nominee now, irrespective of whom he nominates.
The Senate has not abdicated its duty. Obama just doesn’t like how it has done its duty. The Constitution does not require that the Senate act only in response to a president’s nomination. Indeed, the word “advice,” appearing before the word “consent” in the Constitutional text, indicates the Senate’s power to give advice to the president before any nomination occurs, including advice as to the timing of the nomination.
What’s the harm in leaving the number of justices at eight for now? An even number creates the possibility that the court might divide evenly, but that is not unprecedented or inconsistent with the framers’ intent. To the contrary, Congress in 1789 set the number of justices at six.
Worst case scenario: Hillary Clinton gets elected and nominates a liberal to become justice, and Democrats regain the Senate and confirm her nominee. Yet if Republicans cave and consent to some supposed “moderate” nominee by Obama, the ideological balance of the court still tips. Either way, the swing vote is lost.
The only hope for keeping a Supreme Court that respects the actual text of the Constitution is for Republicans to wait, elect a Republican president and keep a majority in the Senate.
That makes this the most important election in at least a generation. It is worth the fight.
To win it, Republicans need to stand united behind McConnell. Sen. Kelly Ayotte, R-N.H., who is in a tough reelection fight, was smart to quickly back McConnell. Likewise for Republican presidential candidates.
McConnell is scheduled to meet Obama at the White House on Tuesday (after this column is filed). Doubtless, Obama will try to persuade McConnell to stop being an “obstructionist.” Obama will complain that Republicans are the party of “no.” He may toss out names of well-qualified nominees, maybe some “moderates” (translate: RINOs) as a “compromise” in sheep’s clothing.
We’ve watched helplessly as Obama has run roughshod over the Constitution. This president who has used executive orders to evade and erode the separation of powers now wants to pick a justice to interpret the Constitution he has repeatedly flouted.
McConnell’s refusal to hold a pre-election vote on an Obama nominee buys a little time for Americans to save this country from the slow rot of lawlessness. Let’s not waste this reprieve.
Bridget Bush is a Louisville attorney and founder of Elephants in the Bluegrass blog. Her column appears every third Wednesday in the Courier-Journal.
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