This year’s presidential primaries have been intense. There is, of course, a lot at stake. And while some may have hoped that the shouting, finger pointing and recriminations might abate as the field of contestants narrows, the sudden passing last Saturday of Supreme Court Justice Antonin Scalia changed all that. Scalia, an iconic figure of great intelligence and influence, was a leader of conservative jurisprudence throughout his colorful tenure on the court. He prided himself in being “an Italian kid from Queens,” but he was much more than the first Italian-American appointed to the Supreme Court.
His passing leaves a void that will be felt for a long time, but the opportunity politicians in Washington now have to mold the court by appointing a successor cannot be ignored. And it isn’t clear just how it will all play out.
Barely an hour after news of Scalia’s death spread across social media, Senate Majority Leader Mitch McConnell of Kentucky made a bold pronouncement, warning President Barack Obama against nominating a replacement for the late associate justice. “The American people should have a voice in the selection of their next Supreme Court justice,” he said. “Therefore, this vacancy should not be filled until we have a new president.”
Apparently, McConnell forgot that the American people did have a say: In 2012, they re-elected Obama by a wide margin. Two years later, the same American people granted control of the Senate to the Republicans. So what the people have set up is a checks and balances reality whereby the president and the Senate will have to work together to fill the Supreme Court vacancy.
We urge both sides to work quickly to appoint Scalia’s replacement. Doing so would demonstrate trust in a value Scalia himself held dear: the rule of law. As a strict constructionist, Scalia knew what the Constitution says about Supreme Court vacancies. He would have laughed at the suggestion that the country should wait until a new president is elected for a replacement to be nominated — even though he would have been very aware of the political calculations in the suggestion.
Once the president makes his nomination known, we hope the Republican-controlled Senate will take its job seriously, rather than react with knee-jerk opposition or follow Donald Trump’s suggestion of “delay, delay, delay.” Instead, they should vet the nomination fairly and honestly. With a host of consequential cases pending before the court, a 4-4 split among justices isn’t in anyone’s interests.
While the likely heated political process that will follow Obama’s nomination will create great theater, it will threaten good government. And it is anyone’s guess which segment of the electorate will become more antagonized by the opposition’s actions. Wouldn’t it be ironic if in a push to replace the iconic Scalia with someone just as conservative, Republicans unwittingly galvanized the electorate to vote for a Democrat for president?