Senate Has Clear Responsibility to Fill Supreme Court Vacancy
When members of Congress take the oath of office, we swear we will “faithfully discharge the duties of the office.” It is not an oath we should take lightly, which is why it was so disappointing to hear Republicans say they won’t even consider a Supreme Court nominee, declaring that the next president should fill the vacancy on the court.
This is an insult to the institutions we were chosen to uphold and ignores decades of precedent surrounding the process of nominating justices to the highest court in our land.
Presidents have enjoyed deferential treatment when it comes to judicial nominees. It was widely respected that the American people chose the president to represent them in the executive branch and that included appointing successors to the Supreme Court.
And it didn’t seem to matter whether it was an election year or if the President was in the final term of his administration.
The precedence for the Senate acting on a Supreme Court nominee in an election year is substantial. In fact, there have been 17 justices confirmed during an election year, including when the party controlling the Senate was different than that of the President.
The number of times a Democratic Senate confirmed a Republican nominee since 1951? The answer is eleven. Four of those confirmations were in election years.
In 1988, the last year of the final term for President Ronald Reagan, the Democrat-controlled Senate could have waited until after the presidential election in the hopes a Democrat would win the White House and put a Democratic appointee on the Supreme Court.
Instead, Senate Democrats faithfully discharged the duties of their office. They held confirmation hearings, debated the nominee on the Senate floor, and ultimately confirmed President Reagan’s nominee Justice Anthony Kennedy.
Justice Kennedy’s confirmation marked the sixth time since 1912 that a Supreme Court nominee had been confirmed in a presidential election year.
This term, the Supreme Court is set to rule on some of the most controversial issues facing our nation today–abortion access, affirmative action, religious exemptions for contraception coverage, and the President’s executive action on immigration reform.
These are not just abstract legal debates; they will have real repercussions for the American people. For example, if the Supreme Court reaches a tie in Whole Women’s Health v. Cole, three-fourths of Texas’ clinics that perform a full range of reproductive health procedures will be forced to close, leaving millions of women with insufficient access.
The President’s executive action to keep families together when it comes to deportation proceedings is also before the court. The lower court ruled the President acted beyond his authority. Leaving the lower courts ruling in place could mean millions of Dreamer kids would be forced from the only home they have ever known and deported to a country where they don’t speak the language and have no roots.
That’s why we need a full Supreme Court that can rule on these issues and set national precedent, not just kick the can back to the lower courts.
The President also promises to discharge the duties of the office of the presidency. President Obama has said he will nominate a replacement. He is correct to do so because it’s his job.
However, Senate Republicans are balking at doing their jobs. Senate Judiciary Chairman Sen. Chuck Grassley (R-IA) said it has been “standard practice” that Supreme Court nominees are not nominated and confirmed during a presidential year. Yet in 2008, Grassley accused Democrats of “employing some fast and fancy footwork to avoid their Constitutional responsibility.”
Senate Majority Leader Mitch McConnell (R-KY), who called on President Obama not to nominate a successor, also said in 2008, “Our Democratic colleagues continually talk about the so-called Thurmond Rule, under which the Senate supposedly stops confirming judges in a presidential-election year. The seeming obsession with this rule that doesn’t exist is just an excuse for our colleagues to run out the clock on qualified nominees who are waiting to fill badly needed vacancies.”
In 2010, Justice Antonin Scalia himself weighed in on the issue when speaking at the University of Montana: “I am not happy about the intrusion of politics in the judicial appointment process.”
It’s hard to imagine that Justice Scalia would want the institution he so revered to be absent a justice for over a year and two court terms.
This editorial appeared in Times of San Diego