Supreme Court Justice Antonin Scalia died suddenly on February 13, 2016. Within three days, McConnell announced his intention not to consider any candidate that Obama might nominate to replace Scalia.
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.This excuse had absolutely no basis in the Constitution or in any law Congress had ever passed. The Constitution gives the President explicit and exclusive authority to nominate justices while giving the Senate explicit and exclusive authority to approve them. Majority Leader McConnell used naked power to violate the clear intention of the Constitution.
A week later, Senate Republicans caucused and agreed. McConnell reported,
I believe the overwhelming view of the Republican Conference in the Senate is that this nomination should not be filled, this vacancy should not be filled by this lame duck president.This excuse is bizarre. The “American people” had already had “their voice in the selection of the next Supreme Court Justice” when they elected Obama in 2012. And to consider Obama a “lame-duck president” when he still had eleven months in his term of office defies logic and reveals the disingenuousness of McConnell’s argument. It’s a marker of our extreme partisanship that McConnell was not laughed out of Congress, much less supported by his party.
By announcing his edict before Obama had even considered a nomination, McConnell made clear that it had nothing to do with the qualifications of any candidate. In fact, Garland was widely considered a moderate judge whom a majority of Republicans had supported when he was previously appointed to the US Court of Appeals.
McConnell later gloated that
the decision I made not to fill the Supreme Court vacancy when Justice Scalia died was the most consequential decision I’ve ever made in my entire public career.The practical consequences of McConnell’s brazenness was the longest vacancy (422 days) in the history of the modern Court. The decision will affect the nation for at least a generation. With Trump’s two extremely conservative nominees, the court will have at least a 5/4 conservative/liberal tilt for years. And since two of the four liberals are in their 80s, it’s likely that the balance will tilt further.
But the greater damage is to our democracy. Yes, McConnell was within his legal authority; the majority leader determines the timing of the Senate’s work. But clearly he did not act in accordance with the intentions of the Constitutions, which certainly did not intend to give one person such power. Neither did he act in the tradition of the country, nor in the best interests of the democracy. At any time in the future, the majority leader can now block any nominee at any point in a president’s term. Especially with our hyper-partisan Congress ruled by a radical minority within the Republican Party, we have entered new and dangerous territory.
While the legislative maneuver was different, the Democratic Party must accept some responsibility for McConnell’s power play. When Democrats were the majority party, tradition required sixty votes (a “super-majority”) to approve nominees for either the president’s cabinet or federal judicial posts, ensuring some level of bipartisan cooperation. When, in 2013, Republicans repeatedly rejected Obama’s nominees, the Democrats, using a rare parliamentary procedure, voted that approval could be decided by a simple majority. Bipartisan support was no longer needed. The Democrats did not intend to extend their ruling to the Supreme Court, but the precedent was obvious. McConnell used a different mechanism (refusal to bring the nomination to a vote), but the Democrats had already left a wide-open door. McConnell walked right through.
The Constitution’s power is based not only upon its content but also on the traditions that have been built upon it to maintain democracy. Sustained, direct and legalistic assaults by whomever has the power—in this case Democrats first and then Republicans—will do great damage to our nation.
