Shortly after the announcement of the death of Supreme Court Justice Antonin Scalia last Saturday, Senate Republican Majority Leader Mitch McConnell issued a statement saying, “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.” If he follows through with that threat, McConnell will have betrayed the bedrock principle of Justice Scalia’s constitutional beliefs.
The justice was the strongest proponent of the theory of “originalism,” meaning the Constitution must be interpreted according to the original intent of the authors. Paraphrasing Justice Scalia, that means we must look to what they wrote and their understanding of what it meant. Applying that to the president’s power to nominate Supreme Court justices reveals McConnell’s utter hypocrisy on the issue.
Article II, Section 1 of the Constitution provides, among other things, the president “…shall nominate, and by and with the advice and consent of the Senate, shall appoint…judges of the Supreme Court….” Notice the authors wrote “shall” nominate, not “may” nominate. “Shall” is a commandment, not a grant of discretionary power; it implies a duty. There also is no qualifying clause on the duty to nominate, such as, “except in the last year of a president’s term.” Justice Scalia’s doctrine doesn’t permit such an interpretation. For McConnell and his Republican compatriots to say the vacancy on the Court should be filled by the next president is “pure applesauce,” to quote Justice Scalia in his dissent in the recent same-sex marriage case.
Justice Scalia’s would-be followers can’t claim the mantle of the era’s leading conservative justice and at the same time denigrate his greatest legacy.
Presidential candidate Marco Rubio stated on national television presidents don’t nominate justices and the Senate doesn’t act on nominations in an election year, a notion shared by his Republican colleagues. According to research available online, that simply is not true. Numerous nominations and confirmations have occurred in election years, most recently the confirmation of Justice Anthony Kennedy in 1988.
It’s instructive to remember, in the year no nominee of President Obama will be considered, the Democratic controlled Senate confirmed Justice Scalia’s nomination unanimously in 1986.
The true motivation for the Republicans, including their stalwart presidential candidates Trump and Cruz, may be found in a simple analysis of McConnell’s pronouncement. Remember, he said the next president should make the nomination. Let’s assume a Democrat is elected, assuring the eventual nomination of a like-minded or even more liberal nominee than Mr. Obama would likely make. In that case, why in the world would McConnell not allow hearings and a vote on an Obama nominee in the interim between the election and the new president’s inauguration?
The not so subtle answer may be found in McConnell’s statement on Oct. 23, 2010, that “the most important thing we want to achieve is for President Obama to be a one-term president,” a mindset and goal that have continued ever since. In fact, the widespread Republican hatred of Mr. Obama has only intensified in the ensuing years. They simply can’t grant him due respect to carry out his constitutional powers, defaming him and the office of the presidency.
Bo Statham is a retired lawyer, congressional aid and businessman. He lives in Gardnerville and can be reached at bostatham@me.com.
