When Justice Antonin Scalia passed away following a illustrious career and a quail hunt Saturday, the whole country freaked out over what would happen to the Supreme Court.
Can President Obama get a nominee through a Republican-controlled Senate?
Can a Republican-controlled Senate stop an Obama nominee during an election year?
How will the high court function with only eight justices?
These are some of the more pressing questions that overshadowed the death of one of the most storied public servants in recent American history and shifted the focus entirely on the question of replacing the deceased judge.
The arguments from both sides of the aisle appeal to the pillars of American governance to make their case for and against confirming a nominee during Obama’s last year in office.
Liberals think it is the constitutional duty of Republicans to confirm whomever the president nominates to the Supreme Court, while Republicans argue legal precedent says they shouldn’t vote on any court nominations during an election year.
Others have simply bemoaned the heightened state of partisanship, which refuses to allow the Supreme Court to have its ninth justice.
Whatever reasons people put forth for or against confirming a Supreme Court nominee in 2016, the issue is really about the role of political power. Republicans are in the majority of the Senate. They have every right to do as they wish with a potential justice sent their way.
The Constitution doesn’t mandate they have to confirm whomever the president picks. If they want to delay the action, there’s precedent for that. If they want to reject the confirmation just because they don’t trust Obama’s judgement, they could do that to. Just ask the Democrats who borked Robert Bork in 1987.
It is typical of America politics that instead of giving a nakedly honest answer about this procedure, both sides would prefer to drape themselves in the mantle of legal superiority.
Now the real question is: Who will prevail in the battle for the court?
Almost as soon as news broke of Scalia’s death, Senate Majority Leader [crscore]Mitch McConnell[/crscore] stated his legislative body would not consider any addition to the highest court during the election year. His statement was echoed by every Republican presidential candidate at Saturday’s debate.
That hasn’t deterred Democrats from digging in and vowing to fight to the bloody end over filling the court vacancy. On Tuesday, Obama mocked Republicans for their precedent arguments and admonished Congress to “rise above” the “venom and rancor in Washington.”
Judging by the president’s past record of handling Congressional opposition, it’s abundantly clear he and his allies are going to milk this fight for all its political worth to gain an advantage.
Obama is likely to nominate a minority to the court, and probably an individual from a group that could be mobilized to vote in November over Republican obstinacy. You can almost see the columns and media talking points now deploring the bigotry of Republican senators who refuse to seat America’s first Indian-American or first black female Supreme Court justice. (RELATED: Decision Time: The Pros And Cons Of Obama’s Top Supreme Court Options)
If there’s one weapon that can always be counted on to browbeat Republicans into submission, it’s the charge of racism, and Obama and friends will have no problem using either to get another liberal on the court or votes on Election Day.
It’s a common refrain that GOP leadership in Congress caves too much and has delivered little to the voters who put them into office. Confirming a liberal appointee to fill a stalwart conservative’s chair on the Supreme Court would be the final nail into the coffin for their credibility, as National Review’s David French has noted.
It’s possible that Republicans would capitulate in the fight if they fear being labelled as bigoted and not “governing,” but they would be giving a gift to Sen. [crscore]Ted Cruz[/crscore] and Donald Trump if they did so. Talk radio host Hugh Hewitt said any Republican who votes for an Obama nominee would surely get a primary challenge. (RELATED: Hewitt: ‘Senators Will Lose Their Jobs If They Block The Blockade’)
Whatever legalistic arguments Republicans are going to make for delaying confirming is likely not going to hold up in the court of public opinion. Pretty much every media outlet is going to side with the White House and wag their finger at whatever resistance they put up.
Republicans should accept the perks that come with the power of controlling the Senate. There is nothing wrong with being partisan about it when the decisions of the likely nominee could fundamentally transform the country. There’s no reason to hold political power if you’re too timid to use it.
Obama has demonstrated what he is willing to do with the power given to by the executive branch. It’s time Republicans have the guts to do the same in regards to shooting down whatever pick comes from the White House over the coming year.