By Susan Green Barger
Many Republicans have made it abundantly clear that they do not intend to let President Barrack Obama nominate a justice to the Supreme Court to replace Justice Antonin Scalia.
According to Politico, Senate Majority Leader Mitch McConnell (R-Kentucky) “vows to bar a replacement” should the president have the gall to submit a name. Chairman of the Judiciary Committee, Chuck Grassley (R-Iowa), hints that he might use his power as chair to stop the nomination process. During the debates, Sen. Ted Cruz (R-Texas) promised to filibuster any attempt to consider a nominee. Donald Trump has called for the Senate to “Delay, Delay, Delay.”
The reasons became clear on Meet the Press after presidential hopeful, Sen. Marco Rubio (R-Florida), said that the Senate should definitely stop all nomination procedures until a new president is elected. Chuck Todd, moderator, asked him if the Senate should at least go through motions. Rubio responded with palpable contempt: “Not while Barack Obama’s in the White House!” Rubio also said it is imperative to holdout to ensure that the next justice is conservative.
There it is—the elephant in the room. The Republicans are motivated by two things: their deep dislike for President Obama and their fear that a liberal will be appointed to the Court.
Republican devotees of the Constitution vehemently claim that every word in the document is sacrosanct yet, they have conveniently forgotten that Article II Section 2 unequivocally states: “[The President] shall have power . . . [to appoint] judges of the Supreme Court …”
Their justifications for stopping President Obama are flying right and left but not a single one is consistent with the Constitution they claim to love, honor, and obey. Let’s take a look.
1. President Obama only has a few months left in office. Reality Check: The appointment power outlined in the Constitution applies the entire time a president holds office.
2. Why should President Obama get to shape the political makeup of the Court so near the end of his term since his decision will affect the decisions of the Court for many years? Counterargument: Why should a new Republican president or any president for that matter be able to shape the political makeup of the Supreme Court since the decision will affect opinions for many years? Reality Check: This concern has nothing to do with the appointment power.
3. There is so much divisiveness in the country. Nominating a justice right now will make things worse. Counterargument: Postponement of the process will make things worse. Reality Check: The Constitution does not say that the nomination of Supreme Court justices can only take place when the nation is united.
4. The Supreme Court is already in session. Reality Check: The Constitution does not limit the appointment power to times when the Court is out of session.
5. The Supreme Court can function with eight justices. Indeed, it functions quite nicely whenever a justice recuses him or herself from a particular case. Counterargument: A recusal here and there is not the same thing as a long-term vacancy where a tie vote is a real possibility for every case under review. A tie vote means that the decision of the lower court stands. Republicans need to really think about this. If the pending cases they care about end up in a tie vote, the lower court decisions they loathe will stand. Reality Check: The Supreme Court is currently required to have nine justices. Period.
6. The upcoming election should be a referendum on the Supreme Court—that is, let the people say what kind of justice they want based on whom they elect to the Oval Office. Reality Check: The Constitution does not give the public a direct say in the appointment process. Their interests are represented by the senators and president who currently hold office.
7. Republicans know that President Obama will nominate someone who is far less conservative than Justice Scalia. Reality Check: The appointment power does not limit a president’s choice to someone whose political persuasions closely match the political persuasions of the justice who is being replaced.
8. President Obama cannot be allowed to select a justice that will give the liberals on the Court a majority for many years to come. Counterargument: A Republican president should not be allowed to select a justice who will give the conservatives on the Court a continued majority for many years to come. Reality Check: The appointment of a justice is not legally contingent upon the ideology of the majority party in the Senate.
9. Democrats have done the same thing to Republican presidents. True, but Republicans have done it to Democrat presidents. Counterargument: So first grade! Two wrongs never make a right and are not a justification for denying the appointment power. Reality Check: The appointment power is not determined by what Democrats and Republicans do to each other.
There it is. The Constitution is out the window. And many Republicans are just fine with this.
It is not fine. The Republicans in this boat do not honor the Constitution as much they claim too and are perfectly willing to ignore it when it suits them. It shows that they have no respect for our democracy and the Rule of Law. It shows they have no tolerance for differences of opinion. It shows arrogance and disrespect for the people who put them in office.
Susan Green Barger of Pocatello has a Master’s Degree in Sociology from Idaho State University and is pursuing a Doctor of Arts in Political Science at ISU. Barger was Assistant Director of Women’s Studies at ISU for 13 years and an Adjunct Professor for 15 years. She developed and taught a number of courses in Women’s Studies. She also taught Sociology and Political Science courses. She currently writes grants and raises money for the Power County Hospital District.