The first alert from The Associated Press confirming that Supreme Court Justice Antonin Scalia had died while in West Texas to hunt quail moved on the news wires Saturday at 4:30 p.m. Less than 90 minutes later, at 5:54 p.m., Senate Majority Leader Mitch McConnell’s reaction to Scalia’s death also moved on the wires.
“Today our country lost an unwavering champion of a timeless document that unites each of us as Americans,” McConnell’s statement read. Additional praise for Scalia’s “fidelity to the Constitution” followed as did McConnell’s condolences to Scalia’s family.
Then this obstructionist conclusion: “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.”
Senate Republicans quickly echoed McConnell, with Texas Sen. Ted Cruz saying he would filibuster any Supreme Court nominee made by President Barack Obama, sight unseen, qualifications ignored. But on Tuesday, some “modest backtracking,” as The New York Times described it. Republican Sen. Charles Grassley of Iowa, chairman of the Judiciary Committee, indicated he would be willing to hold a confirmation hearing for whomever Obama nominates to replace Scalia. On Wednesday, Texas Sen. John Cornyn, the No. 2 Republican in the Senate and a member of the Judiciary Committee, also did not rule out holding a hearing for Obama’s nominee, though he said he agrees with McConnell that the next president should pick Scalia’s replacement and doesn’t think the Senate should confirm anyone Obama nominates.
Obama is president for another 338 days. He has, as he repeated during a news conference Tuesday, a constitutional obligation to nominate someone to take Scalia’s place. The Senate, likewise, has its own constitutional duty to consider Obama’s nominee and either accept or reject the president’s choice. With Republicans holding an 11-9 majority on the Senate Judiciary Committee — Cruz also sits on the committee, along with Cornyn — and with Republicans outnumbering Democrats in the Senate 54-46, the odds would appear to favor rejection.
The Supreme Court is about halfway through its current term, which ends in June. Four major cases out of Texas — on abortion, voting rights, affirmative action and presidential power — are currently before the court, their outcomes now potentially altered by Scalia’s death.
The court begins its 2016-17 term in October. The earliest the next president could nominate Scalia’s replacement is Jan. 20, 2017, when he or she assumes office. The Senate has never taken more than 125 days to vote on a Supreme Court nominee; on average, the Senate confirmed the last four justices to be appointed to the court — John Roberts, Samuel Alito, Sonia Sotomayor and Elena Kagan — 64 days after they were nominated.
Leaving Scalia’s vacancy to the next president to fill means leaving the court one member short for an unprecedented length of time. But who cares for precedent? Or that which was once considered routine? Since they retook control of the Senate in January 2015, Republicans have been negligently and unprecedentedly blocking Obama’s nominees to the federal courts of appeal. So threatening to block Obama on naming Scalia’s replacement continues an action already being done at a lower court level.
McConnell’s statement forms a bookend to the agreement reached by several Republican congressional leaders on the night of Obama’s inauguration to oppose the new president on everything he proposed, no matter what. That determination was reinforced by McConnell in October 2010 when he told the National Journal that Republicans were motivated to make Obama a one-term president.
Their failure to defeat Obama four years ago is why Scalia’s replacement is Obama’s to nominate. And Republicans’ success in the midterm elections two years ago is why Obama’s nomination is theirs to consider. That’s how it’s meant to work, election year or no. The Constitution — that “timeless document that unites each of us as Americans,” to quote one Mitch McConnell — says so.