Recent days have brought us scant little news from the Obama administration on the identity of the next nominee to the Supreme Court. For weeks now since Justice John Paul Stevens announced his retirement, the administration has offered occasional glimpses into the president’s potential selection. Each of these tidbits has been measured just right to stoke the curiosity of those in the public, the media, and the blogosphere who follow these things, without actually providing any new information. The rumors at times have alternately suggested that the list had been shortened and that it hadn’t, that certain people were definitely not on the list and that certain people definitely were on the list. But in all of the rumors that have leaked out of the White House, the one thing that is abundantly clear is that the president—just like the last time he had an opportunity to name a nominee—has little fear of the Senate Republican Caucus.
And for good reason. While the political landscape in the Senate today is quite different than it was nearly a year ago when the president nominated then-Judge Sonia Sotomayor to the Court—with the Democrats no longer enjoying a filibuster-proof majority—every signal being sent by the Senate Republicans makes clear that because they know a filibuster has almost no chance of succeeding, they intend (once again) to simply lay down their arms and confirm whomever the president puts up without so much a real vetting, much less a real fight.
Now, it certainly is true that some Senators have suggested that they would fight tooth and nail if the president nominates an unreconstructed liberal candidate who intends make law from the bench and not interpret it, that statement has little independent merit and, even worse, has been combined—every time—with the conciliatory point that if the president nominates a “well-qualified” candidate, the Senate will likely confirm the nominee in fairly short order.
But, of course, this is not what the Constitution calls for, nor is what the Senate Democrats did when the previous president nominated then-Judges John G. Roberts, Jr. and Samuel A. Alito, Jr. The Constitution imposes upon the Senate the duty to provide its “Advice and Consent” on the president’s nominees—a responsibility which the Senate Democrats took up with much gusto during the previous administration, and a responsibility which the Senate Republicans (with a few notable exceptions) seem to simply have forgotten during the confirmation hearings for then-Judge Sotomayor.
In the lead up to the Supreme Court nominations during the previous administration, key Senate Democrats, rather than making conciliatory statements about potential consensus candidates, instead made it clear that they were prepared to use the “nuclear option.” Of course, they didn’t ultimately do it, but that speaks more to the impeccable qualifications of those nominees that reached the confirmation hearings, more than it does to the willingness of the minority party in the Senate to be ready to stand up to the president.
The Republicans in the Senate today (again, with a few notable exceptions) seem once again unwilling to waste any political capital on the nomination. After all, they say, it just doesn’t make much of a difference since the president is simply going to replace the Justice Stevens with another liberal. And, since we don’t have the votes to stop the nominee, they say, why exert ourselves to carefully vet this nominee; it just won’t make a difference. The answer, of course, is simple: while the Senate Republicans may not be able to stop the president’s nominee, they still have a solemn obligation and duty—grounded in the Constitution—to take a hard look at the president’s nominee and ask serious, incisive questions. Voters in the several states ought to be telling their Senators that this is exactly why we elected you—to keep an eye on what’s going on in Washington and to ask hard questions; not simply to count heads and say, well, it just ain’t worth it.
Now nobody is suggesting that the Republicans in the Senate shouldn’t vote to confirm the ultimate nominee—at least not yet; after all, we don’t even know who it is going to be. Rather, the only claim here is that the Republicans in the Senate have a very real choice to make—they can either stand up and take honest account of their constitutional duties like the Democrats did in the past—or they can take the same path of political cowardice that many did during the last nomination and simply put their heads in the sand, sit on the sidelines, and wait for the nightmare to pass. My view, for what it is worth, is that the former path is far preferable to the latter. We shall see—very soon—what path our elected leaders chose.
Jamil N. Jaffer previously served in the previous administration as an Associate Counsel to the president in the White House and as a Counsel in the Department of Justice’s Office of Legal Policy where he worked on the confirmations of Chief Justice John G. Roberts, Jr. and Samuel A. Alito, Jr.