Supreme Court Justice Antonin Scalia died in Texas over the weekend, and in the three days since, politicos have been abuzz with what will happen next.
To be very clear, what should now happen is clearly described in Article II, Section 2 of the Constitution:
He [the president]shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.
Article II, Section 2 has no footnotes, no fine print, and no lack of clarity—the President, at any point during his term of office, is duty-bound to appoint Supreme Court justices.
Within hours of the San Antonio Express News breaking the story of Scalia’s death, Senate Majority Leader McConnell signaled that a fight was brewing:
— Leader McConnell (@SenateMajLdr) February 14, 2016
You may hear that there’s a rule, a tradition, a ban on presidents appointing justices “so close” to an election.
That’s the truth, no matter how loudly, and how often, Republicans claim otherwise.
We fully expect, however, that Senate Republicans will adopt a delay and deny strategy when President Obama nominates a replacement to fill the court’s vacancy. What, then, should those elected officials expect will happen?
When Republicans threatened to shut down the government in September of last year over Planned Parenthood, a Quinnipiac poll found:
Nearly seven in 10 Americans — 69 percent — oppose shutting down the government over funding for Planned Parenthood … Just 23 percent support closing the government over the dispute. Even among Republicans, a majority of 56 percent to 36 percent opposes a shutdown due to Planned Parenthood.
A Wall Street Journal / NBC News poll conducted during the fall, 2013 government shut-down had all kinds of bad news for Republicans. Some highlights:
Participants in the poll gave the Republican Party overall its lowest marks in the history of Journal polling, which goes back to 1989: More than twice as many hold a negative view of the GOP as a positive one.
In all, 53% of those polled blamed Republicans for the shutdown, compared with 31% who blamed Mr. Obama—numbers that showed the GOP taking a worse beating than the party did 17 years ago during the last extended shutdown, under President Bill Clinton.
Asked about the current budget battle, 70% of participants faulted Republicans in Congress for putting their political agenda ahead of what’s good for the country.
It turns out that we the people, who have to show up and deal with an unrelenting stream of bull on a daily basis in our work and home lives, don’t really like it when Republicans act like toddlers, stomp their feet, and shut the whole thing down.
But let’s say the Republicans ignore past history that suggests their obstructionist ways garner them no love.
Let’s say President Obama nominates one of the people that have been named as most likely to be under consideration, several of whom are in this photo montage:
You might be able to discern that a goodly number of the people whose names come up in speculation over who might be a nominee—Loretta Lynch, Sri Srinivasan, Paul Watford, Goodwin Liu, Kamala Harris, Jane Kelly, Deval Patrick, Alison Nathan—would bring some level of gender, sexual orientation, religious, or ethnic diversity to the court.
They are all eminently qualified to serve on the Supreme Court.
Several of them have received near-unanimous confirmation votes from the Senate for their most recent appointments, which would make it extremely difficult for any senator to make the case that they were now, suddenly, not as impressed with their qualifications. They’ve been vetted, after all, and questioned thoroughly, sometimes relentlessly and over many months. Loretta Lynch, for example, withstood a 5-month delay that eventually became embarrassing to GOP leadership.
Imagine, then, that one of the country’s top legal talents who happens to be a woman of color, or a Hindu, or an out lesbian—basically anyone other than a white man, receives the nod from the President.
And imagine the Republicans declaring battle on that nominee.
Tearing that person down, disparaging him or her, and delaying. Think of the racist, sexist, and just downright objectionable language that the rank (both definitions are apropos here) and file Republican peanut gallery would be RT’ing and ALL CAPPING across the social media universe.
Then, cast your mind back to what happened in the election held after Anita Hill was subjected to some of the most caustic, degrading Senate hearings in history.
Recall the names in the news after the 1992 election: Patty Murray, Carol Moseley Braun, Dianne Feinstein, Barbara Boxer.
1992 became the Year of the Woman, with both candidates and voters citing the Clarence Thomas hearings that so humiliated Anita Hill as the reason they ran for office or voted for women.
Folks, it ain’t just the GOP base that will be galvanized by a nasty, protracted GOP fit of pique over President Obama’s constitutional right to appoint a Supreme Court justice. It will also be the people who, maybe for the first time, see their own lives and experiences reflected in a nominee.
Some people have been concerned about the composition of the Supreme Court since the start of this campaign, and those people have periodically be criticized for ignoring other issues. Supreme Court jurisprudence affects almost every area of our lives.
- Voting rights?
- Abortion and health care?
- Fair place and workplace safety?
- Environmental protection and food safety?
- Immigration and keeping families together?
The conservative right has been stacking the lower-level courts, filling up local offices, and putting people in place to implement policy for decades. That’s not paranoia, that’s fact—read about the Federalist Society, for example, if you want to know more.
Their strategy, however, rests upon having the Supreme Court in place to back them up.
We can’t let them have it. We must do all in our power to let voters know these key facts:
It is President Barack Obama’s constitutional right to appoint the next Supreme Court justice.
There is no rule, tradition, policy, or procedure that prevents him from doing so.
The Senate’s role is advise and consent, and it is exceptionally rare for them to vote down a nominee.
If the Senate repeatedly delays and denies, if they threaten to or actually do shut down the government over this issue, then they are the ones disregarding tradition and history, as well as the constitution. They are the ones denying President Obama the power of his office and his right to govern for his full term.
In the very worst case scenario, if Republican Senators violate the president’s constitutional right to appoint a judge to the Supreme Court so long that it becomes the next president’s job, we need to make sure that president is someone who will, unlike the Republican senators, respect President Obama’s constitutional right to do his job and re-nominate the person he picks.
So go ahead, Republicans. Show how little respect you have for the constitution and President Obama. Show how little you care about the people’s right to have a fully functioning Supreme Court. Because the people are watching. And we vote.