The Conservative Seat

We all mourn the death of Justice Scalia.  He was the acknowledged intellectual powerhouse of the Supreme Court.  Yet, while his corpse is barely cold, the fight has begun for his replacement.

President Obama has the opportunity to fundamentally transform the Supreme Court and with it, American society.  His nominees to the court so far, Sotomayor and Kagan, have both consistently supported liberal opinions, whereas Anton Scalia was the conservative voice of the Supreme Court.  Now, with Scalia’s seat open, the president has announced that he will nominate the next justice.

Senate majority leader Mitch McConnell said that the next justice should be nominated by the new president next year.  “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.” McConnell said.

This is not an unreasonable expectation.  By this summer, we will have two greatly divergent candidates for the presidency.  No matter who the Republican candidate is, he will be conservative.  Either of the Democrat candidates are strongly progressive.  The November election will be the voice of the American people saying which direction we want our country to go.  Therefore, having the next president fill the Supreme Court vacancy will be a reflection of the current thinking of the citizens.

What then of the current president’s Constitutional authority to nominate a person to fill the vacancy?  Certainly, President Obama has the right to name someone.  However, he does not have to.  He can defer to the next president.  This is a position that has been advocated by the Democratic Party in the past.  In 2007, the last year of George W. Bush’s presidency, Senator Chuck Schumer or New York stated “We should not confirm any Bush nominee to the Supreme Court, except in extraordinary circumstances.”  In light of this statement, Senator McConnell’s statement is consistent with the Democratic Party’s assertion that a lame duck president should not be making decisions as momentous as picking the next Supreme Court justice.

Waiting until January 2017 to replace Scalia is not unprecedented.  In modern times, Justice Fortis’ seat was vacant for 391days, when two Nixon nominees, Clement Haynsworth and G. Harrold Carswell, were both voted down by the Democratic-controlled senate.

If, however, President Obama does decide to nominate a replacement justice, he should first discuss his selection with the Republican leadership before announcing it.  As Senator Schumer said during President Bush’s selection of a replacement for Justice O’Connor, “I sincerely hope that the president will be true to tradition and true to the best interests of the nation and he’ll consult meaningfully with both Democratic and Republican senators before making such a momentous decision.”[1]

If president Obama does name Justice Scalia’s successor, we hope that he remembers that this is the Supreme Court’s conservative seat and names someone with the strong belief in the Constitution that Anton Scalia held.

© 2016

[1] © New York Times July 5, 2005

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