Many people have ravaged Justice Scalia for his originalist and pure textualist view of the Constitution, myself included. While I can only speak for myself, the reason I did so was not to bring a man down, rather, it was to, in my own small way, attempt to raise the level of debate in this country.
Justice Scalia was a brilliant man. Truly brilliant. His genius was nearly unmatched and his unwavering allegiance to Constitutional originalism is to be admired. However, it was that pure originalism with which I took issue.
Originalism means the Constitution is to be interpreted as it was understood at the time it was written. Originalism disbelieves the theory of the living document. I won’t rehash the arguments made time and time again.
The death of Justice Scalia leaves a vacant seat on the bench that must be replaced. Regardless of your political views, you must acknowledge that a replacement must be made. Not surprisingly, just hours after news of Justice Scalia’s passing broke, Senator Mitch McConnell declared that he would not allow a vote on the Senate floor of a President Obama Supreme Court nominee.
Is there legal precedent for this, you ask? Does the Constitution prohibit Supreme Court nominees in election years? Both, dear reader, are wonderful questions! The answer to both is the same: no, despite what Senators Cruz and Rubio say. In fact, the Constitution actually says the Senate shall confirm nominees. That does not mean the Senate must confirm every nominee, in fact, 28 of 158 nominees to the Court have been rejected or withdrawn. What this does mean, however, is that if Senator McConnell holds true to his word and refuses to allow a vote, he will be acting irresponsibly. I wonder what would happen to me if I went to work this week and refused to do my job? Good thing it’s an election year!
But let’s think about the consequences of refusing to confirm a Supreme Court nominee for, let’s be honest, more than a year. Yes, President Obama only has eleven months remaining but the average nomination process takes about two and one half months. So, conservatively, we could say a new president could have a nominee confirmed by May 2017. But wait! What if the new president is named Clinton or Sanders? Should we wait four more years before confirming a nominee?
The consequences of having an even number of Justices on the Court is worth noting. We are currently in the midst of a term in which several important cases are being heard, including abortion. If there is a 4-4 tie, which is likely in some of the cases, the case is affirmed meaning whatever the lower court ruled is upheld.
Senator McConnell is wrong. You can’t wait a year to replace a Supreme Court Justice because you think you’ll be able to get a nominee more aligned to your values. First of all, the Constitution doesn’t allow for such blatant irresponsibility. Second, Senator McConnell is overestimating the amount of political capital President Obama is holding. I don’t think progressives and liberals will be excited about the nominee as compromise will have to be made. But isn’t that precisely the point of our system? Compromise makes certain neither side always gets exactly what they want. Compromise is what keeps us honest… or what’s supposed to, anyway. Compromise is what gives us rational and thoughtful progress.
Saying you’re going to reject any nominee just because President Obama nominated them is foolhardy to an alarming degree. There have been more than a dozen confirmations during elections years. Justice Kennedy, in fact, was nominated by President Reagan at the end of November 1987 after the presidential elections of that year. If that wasn’t too late to nominate someone, this spring is certainly not too late!
These are issues that are bigger than either party and to shrug them off makes me sick. Are you sickened?