Over the weekend the big news was the unexpected death of Justice Anthony Scalia, perhaps the most conservative member of the Supreme Court of the United States (SCOTUS) providing President Obama with the unexpected opportunity to nominate his replacement. Almost on cue, it only took moments for the Republicans to politicize Scalia’s death – all of the Republican candidates for president called for President Obama to hold-off nominating a replacement, highlighting once again that their understanding of the Constitution they claim to love so much is incorrect. Senate Majority Leader Mitch McConnell (R-KY) threatened to block President Obama’s nominee to SCOTUS until after the November 2016 election, saying 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.”
In a turn of events that will come as a surprise to absolutely nobody, McConnell has a long history of saying the exact opposite.
With the level of opportunistic flip-flopping that we’ve come to expect from modern Republicans, McConnell’s statement is both hypocritical and contradictory. Republicans are always claiming to be strict “Constitutionalists,” and as McConnell noted in 2005, it is the president’s responsibility and his and only his power under Article II of the Constitution to nominate Supreme Court justices (of course, let it not be lost that Bush was president at that time):
“Any President’s judicial nominees should receive careful consideration. But after that debate, they deserve a simple up-or-down vote. . . . It’s time to move away from advise and obstruct and get back to advise and consent. The stakes are high . . . . The Constitution of the United States is at stake. Article II, Section 2 clearly provides that the President, and the President alone, nominates judges. The Senate is empowered to give advice and consent. But my Democratic colleagues want to change the rules. They want to reinterpret the Constitution to require a supermajority for confirmation. In effect, they would take away the power to nominate from the President and grant it to a minority of 41 Senators.” (States News Service, May 19, 2005)
McConnell’s concern, obviously, is that an Obama appointee would alter the direction of SCOTUS considering the Court had an ideological conservative bias, with which McConnell was in agreement. What’s even more hypocritical is McConnell’s recognition and public defense of the fact that a president, who is elected by the people, has the right to alter the ideological direction of the Court. Forty-five years ago, writing in the Kentucky Law Journal (1970), McConnell argued for ‘standards’ to be used in the Senate confirmation process:
“The President is presumably elected by the people to carry out a program and altering the ideological directions of the Supreme Court would seem to be a perfectly legitimate part of a Presidential platform. To that end, the Constitution gives to him the power to nominate.”
McConnell in that same law review article, lamented the fact that the Senate has politicized the nomination process saying:
“Even though the Senate has at various times made purely political decisions in its consideration of Supreme Court nominees, certainly it could not be successfully argued that this is an acceptable practice.”
Which somehow he failed to remember himself writing when he issued a blanket refusal to confirm anybody the President nominated almost instantaneously after the news broke: “the swiftness of McConnell’s statement — coming about an hour after Scalia’s death in Texas had been confirmed — stunned White House officials who had expected the Kentucky Republican to block their nominee with every tool at his disposal, but didn’t imagine the combative GOP leader would issue an instant, categorical rejection of anyone Obama chose to nominate.”
Of course, this discursive dismissal attempting to suggest that he (McConnell) was protecting the American people’s right to choose Scalia’s replacement rebuffs McConnells own argument “The proper role of the Senate is to advise and consent to the particular nomination, and thus, as the Constitution puts it…This taken within the context of modern times should mean an examination only into the qualifications of the President’s nominee.”
Senator McConnell’s disgusting hypocrisy, while to be expected, only highlights how important this nomination will be for the future of our nation. No matter how hard the Republicans complain, President Obama’s term still lasts eleven more months, making his nominee both his Constitutional responsibility and a reflection of the will of the American people. Ironically, Justice Scalia was a strict Constitutionalist and that means he would have most certainly supported the president’s living up to his Constitutional responsibilities by nominating his replacement, and the Senate needs to live up to its responsibility to ‘advise and consent’ – for the good of our nation.