The Constitution states the president of the United States “shall hold his office during the term of four years.” It also states the president has the power to appoint justices to the U.S. Supreme Court, with the Senate having the power to approve or veto the appointment.
Simple as that. There is nothing in the Constitution that states a president cannot make a Supreme Court appointment if the end of his term is in sight. And, this being the case, President Obama has the power – and, arguably, a duty – to put forward a candidate to replace longtime Justice Antonin Scalia, who died unexpectedly Saturday at age 79 while on a Texas hunting vacation.
To hear some Republicans on Capitol Hill and on the campaign trail tell it, though, Obama shouldn’t even bother. They argue the question of who replaces Scalia, a stalwart conservative, should be among the things voters consider when they go to the polls in November. Some even skip that feeble attempt at justifying delay and head straight to flat-out intransigence. For instance, Florida Sen. Marco Rubio, a presidential prospect still trying to regain his footing after a stumbling debate performance Feb. 6, huffed that “the president can nominate whoever he wants, but the Senate is not going to act, and that’s pretty clear. So, we can keep debating it but we’re not moving forward on it, period.”
What Rubio doesn’t say is why they will not move forward. Is there a glut of bills renaming post offices the Senate must deal with first? Too many tours by home-state community groups to lead? Somewhere between now and next Jan. 20, a whole 11 months, we think the Senate could spare a few minutes to consider a Supreme Court nominee, even if they weren’t anticipating a vacancy would be occurring this year. Think back to the immediate aftermath of 9/11: The Department of Homeland Security, an entire Cabinet department, was given the green light and formed within a year. Compared to that, ushering a Supreme Court nominee to the bench should be fairly straightforward.
And, of course, if a president of their own party was a little less than a year away from the end of his term, Republicans would be chomping at the bit to put a nominee on the Supreme Court. But they recognize if Obama’s choice is approved, it could tip the court’s ideological balance, so they insist the nominating and approval process should be put on ice or, at the very least, dragged out indefinitely. One assumes if a legendary jurist like Oliver Wendell Holmes could somehow be resurrected and asked by Obama to return to the court, Republicans would find the pick worthy of objection and derision, simply because he would be an Obama appointee.
There are some indications such a strategy could backfire. As John Cassidy of The New Yorker noted, “If the Republicans block the nomination without properly considering it ... a huge political row will ensue, enveloping the presidential race. ... Come summer and fall, the Democratic candidate, be it Hillary Clinton or Bernie Sanders, will be able to go to the country and appeal for support in preventing the Republicans from humiliating President Obama and making a mockery of democracy.”
Besides, there are some potential candidates being mentioned Senate Republicans should find palatable. Take, for instance, Sri Srinivasan, a U.S. Court of Appeals judge on the District of Columbia circuit. He was approved for a spot on that court by a Senate vote of 97-0 in 2013. Absent a scandal or some other misdeed, how could Srinivasan become unsatisfactory in just three years?
No, Republicans need to drop the shenanigans, follow the Constitution many of them loudly proclaim that they revere, and put a new Supreme Court justice on the bench.