Blood on the Senate Floor

Glancing down from that great judicial bench in the sky, the brilliant and caustic Antonin Scalia is no doubt amused that his death has potentially triggered one of the most dramatic showdowns in the history of the Supreme Court nomination process.

As an emerging scholar of that process (and it remains to be seen when, and from what exactly, I will be emerging), I am of course following the debate over whether or not President Obama should nominate Justice Scalia's replacement himself, or leave the responsibility to the next President, who will be inaugurated in January 2017. Naturally, the Democrats argue that Obama has the constitutional right to make the nomination, and their argument has a great deal of credibility to it, for three reasons at least. First of all, the US Constitution does make it quite clear that the President has the right to nominate Justices of the Supreme Court, and there is no reason why Obama should abdicate this responsibility. Secondly, Obama is still the President, and he will be the President for the next ten months, which is more than enough time for him to make a nomination, and for the Senate to scrutinise and then confirm or reject the nominee. Thirdly, it would be frankly ridiculous for Obama to bestow upon his successor, whose identity remains to be seen, the honour of naming Scalia's replacement. Even if he wanted to, it is difficult to see what possible justification he could offer for allowing the Supreme Court to continue operating with only eight Justices for the best part of a year. On the basis of those three very straightforward points, the Republican argument that Obama's successor should make this nomination is hollow, ludicrous and totally at odds with the Constitution, as Obama's defenders and Democrats generally have already pointed out several times since the announcement of Scalia's death on Saturday.

On the other hand ... From the comments I have read, it does not appear that the Republicans have attempted to justify their arguments by citing the words of the Constitution. They have simply pointed out that Obama making this nomination is a bad idea, which, on the face of it and for reasons which I will come to in a moment, is not necessarily a ludicrous argument. In fact, it might be argued that, in the same way that the Constitution empowers Obama to name Scalia's successor at his convenience, the Republican decision to oppose any nominee Obama chooses does also have Constitutional justification. Article II, Section 2 of the document states that the President shall name Justices of the Supreme Court 'by and with the advice and consent of the Senate'. The President can make the nomination and the Senate may be as obstructive and unreasonable as a majority of the Senators see fit, and this is clearly the course of action favoured by the Republicans.

Of course, the Republican argument that the President should not name a nominee during the final, 'lame duck', year of his Presidency (when the election to determine his successor is underway) is, to paraphrase the late Justice Scalia, 'sheer applesauce.' Even more disappointing is the fact that some Republicans have cited the so-called 'Thurmond rule', which originates from Senator Strom Thurmond's dubious claim that President Lyndon Johnson should not have nominated a replacement for Chief Justice Earl Warren following the announcement of the latter's intention to retire in 1968. Aside from the unfortunate decision to invoke the logic of arch segregationist Thurmond in debating the question of whether or not the first African American President should fulfill his constitutional responsibilities, it is worth remembering that Thurmond dreamed up this principle solely because he wanted Republican Richard Nixon (Johnson's successor) to name Warren's replacement, rather than Johnson. His logic had no place in constitutional theory, and he never claimed that it did. 

But then ... equally feeble is the manner in which some have pointed to the Republicans' willingness to confirm Ronald Reagan's appointment of Anthony Kennedy in February 1988 (also an election year). This overlooks the fact that the outgoing Justice Lewis Powell announced his retirement way back in July 1987, and also that Reagan had offered two previous nominees to replace him (one of whom, Robert Bork, was rejected by the Democrat-controlled Senate). As John McCain said at the time, there would be no opposition to Kennedy because 'there's too much blood on the floor.' The condemnation, by Democrats such as Chuck Schumer, of the Republican policy of opposition to any future Obama nominee is weakened considerably by comments made by Schumer in 2007, endorsing a similar policy of opposition to any future nominations made by 'lame duck' President George W. Bush.

Following the Senate's rejection of Lyndon's Johnson's nomination of Abe Fortas to replace Earl Warren in 1968, the Republicans adopted a position of total and unwavering obstruction to any future Johnson nominee, either actual or hypothetical, forcing Johnson to ask Warren to continue serving until after Nixon's inauguration. Of course, as the President of the United States, Johnson had a constitutional right to nominate Fortas, his close friend, but the Republicans in Congress also had a constitutional right to oppose Fortas and any other individual put forward for the vacancy. There is no guidance in the Constitution on the ability, suitability or ideology of the nominee, nor are there any remarks regarding the President's justification for choosing that individual, nor are there any comments on the Senate's reasons for preventing confirmation.

But, let's face it, this debate has nothing to do with the Constitution, in the sense that Obama's justification for making this nomination is no greater than the Senate's justification for blocking it. The real reason the Republicans do not want him to name Scalia's replacement is that they do not believe him to be capable or responsible in his methods of selection. The fact that his nomination of an arch liberal judge might tip the balance of the Court - in a manner that his two previous nominations simply could not have done - goes without saying. Republicans view Obama as arrogant, provocative, and incapable of selecting a responsible, dignified judge worthy of a seat on the nation's highest court. He is bound to put forward someone with a liberal record that Republicans find distasteful. He is bound to choose someone who will secure his place in presidential history. He is bound to name someone who lacks a sense of honour and fairness. They will no doubt recall that Sonia Sotomayor, his first nominee, upheld an affirmative action policy that denied white firefighters a hard-won promotion, and that Elena Kagan, his second nominee, did not recuse herself from the Obamacare cases, even though she served as Obama's Solicitor General when the legislation was being drafted and sent through the Congress. If they are to admit that these were the reasons for their opposition, then they are effectively admitting that this is all about ideology, rather than responsibility.

While I may not sympathise with the Republican position, and I may not agree with their contemptuous attitude toward Obama, I find it unthinkable that he will be able to restrain himself and work toward a consensus with the same Republicans who obstructed his Presidency from day one. I also find it highly unlikely that he will resist the temptation to make one final provocative gesture designed to antagonise his enemies. So, if he has to name someone to replace Scalia, I sincerely hope that he will take his time and listen to good advice before making a decision. In other words, he'd better be sure his own house is in order if he is to accuse Republican Senators of political opportunism.


Dr. James O.