Republicans Rule Out Replacing Antonin Scalia Until New President is Elected

“This president, who has shown such contempt for the Constitution and the laws, is the last person who should be appointing his successor,” ...

Republicans Rule Out Replacing Antonin Scalia Until New President is Elected

Ed. Note:  While we mourn the death of Justice Antonin Scalia, the US Senate must not confirm a replacement until after a new president is in office. There is an 80-year precedent that “Supreme Court nominees are not nominated and confirmed during a presidential year election.”

Republished from WashingtonTimes.com, by Dave Boyer, February 13, 2016.


Senate Majority Leader Mitch McConnell said Saturday that the Senate should wait until a new president is elected to confirm a replacement for Justice Antonin Scalia, whose sudden death Saturday shook Washington and threatened to reshape the 2016 presidential race.

Photo by: Chris Greenberg In this Oct., 15, 2006, file photo, Supreme Court Associate Justice Antonin Scalia speaks at the ACLU Membership Conference in Washington. On Saturday, Feb. 13, 2016, the U.S. Marshals Service confirmed that Scalia has died at the age of 79. (AP Photo/Chris Greenberg, File)

Democrats said that with 11 months left in President Obama’s tenure, the Senate has enough time — and indeed an obligation — to confirm a replacement. Sen. Harry Reid, the top Democrat in the chamber, said it would be “shameful” to put off a replacement that long.

Mr. Obama said he would in fact make a nomination, forcing the issue on the GOP-led Senate.

“Obviously today is a time to remember Justice Scalia’s legacy. I plan to fulfill my constitutional responsibility to nomination [sic] a successor in due time,” the president said while traveling in Rancho Mirage, California.

“There will be plenty of time for me to do so and for the Senate to fulfill its responsibility to give that person a fair hearing and a timely vote,” Mr. Obama said.

Mr. McConnell, though, said voters must be given a say in the matter, and that means picking a president who will nominate the replacement.

“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,” the Kentucky Republican said in a statement.

And Senate Judiciary Committee Chairman Charles E. Grassley, who controls the committee schedule for handling nominees, likewise said he supports deferring until next year, saying Mr. Obama has already turned the courts into a political battleground, so voters should be asked to referee.

“The fact of the matter is that it’s been standard practice over the last nearly 80 years that Supreme Court nominees are not nominated and confirmed during a presidential election year,” Mr. Grassley said. “Given the huge divide in the country, and the fact that this president, above all others, has made no bones about his goal to use the courts to circumvent Congress and push through his own agenda, it only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court justice.”

News of Scalia’s death was just hours old before the debate heated up.

With the court now divided between four Republican-appointed justices and four Democratic picks, Mr. Obama would have a chance to tilt the bench decidedly to the left, and liberal lawmakers said he should have that chance.

“The Supreme Court of the United States is too important to our democracy for it to be understaffed for partisan reasons,” said Sen. Patrick Leahy, the ranking Democrat on the Senate Judiciary Committee, which is charged with overseeing court nominations. “It is only February. The president and the Senate should get to work without delay to nominate, consider and confirm the next justice to serve on the Supreme Court.”

Mr. Reid said Mr. Obama should sent a nominee up “right away” to prod the Senate to move quickly.

“It would be unprecedented in recent history for the Supreme Court to go a year with a vacant seat,” the Nevada Democrat said.

And Democratic National Committee Chairwoman Debbie Wasserman Schultz said Scalia would have wanted himself to be replaced quickly.

“He understood as well as any public servant that a full and functioning Supreme Court is essential to the survival of our nation of laws, and he worked dutifully to fulfill his role in that process,” the Florida congresswoman said. “As we mourn the loss of a true public servant, we would also do well to ensure that the consequential questions of our time not be left hanging in the balance, twisted by politics, allowing our nation to move forward as our founders intended.”

Liberal advocacy group MoveOn.org said Mr. McConnell’s early declaration that a vote would wait was a “shameful, partisan” move, and urged Mr. Obama to press the fight.

“Now it is time to follow the requirements of Article II of the Constitution, which gives the president the sole power to, with the advice and consent of the Senate, appoint a new Supreme Court justice,” said Anna Gallard, MoveOn’s executive director for civic action.

Democracy for America, another liberal advocacy group, launched a petition to demand Mr. Obama act quickly, and to pressure the Senate to confirm his pick.

And on the campaign trail, Democratic presidential hopeful Hillary Clinton, who as a senator voted against both Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. in the Bush administration, said the Senate must not delay an Obama pick.

“The Republicans in the Senate and on the campaign trail who are calling for Justice Scalia’s seat to remain vacant dishonor our Constitution,” she said. The Senate has a constitutional responsibility here that it cannot abdicate for partisan political reasons.”

But conservatives were already marshaling arguments against any such action, warning Senate Republicans, who control the chamber, not to allow Mr. Obama to name his third pick to the court.

“This president, who has shown such contempt for the Constitution and the laws, is the last person who should be appointing his successor,” said Carrie Severino, chief counsel at the Judicial Crisis Network, a conservative legal pressure group. “The people’s voice should be heard in November to determine who will appoint the next Supreme Court justice.”

If Republican senators do put off a vote until next year, it will only increase the stakes in November’s elections, with the high court increasingly setting the boundaries of both legal and social life in the U.S.

Tom Goldstein, editor of the popular Scotusblog website that tracks the Supreme Court, said normally a justice could be confirmed before the election, but he wrote that’s not likely to apply this time.

“Theoretically, the process could conclude before the November election,” he wrote. “Realistically, it cannot absent a consensus nominee — and probably not even then, given the stakes. A Democratic president could replace a leading conservative vote on a closely divided Court. The Republican Senate will not permit such a consequential nomination — which would radically shift the balance of ideological power on the Court — to go forward.”

Some liberal commentators on Twitter were already talking up the prospects of Sri Srinivasan, the Obama administration’s former principal deputy solicitor general who was just approved by the Senate on a 97-0 vote for a seat at a judge on the U.S. Court of Appeals for the D.C. Circuit, a traditional proving ground for future Supreme Court justices.

In the meantime, the court still has four months left in its current session, and some weighty cases pending, including a still-to-be-heard case on Mr. Obama’s immigration deportation amnesty. In that case, lower courts blocked the president’s plan, and the Supreme Court had sped the appeal in order to hear it this term.

A 4-4 decision at the high court would leave the lower appeals court’s injunction in place.

Just last week the five-justice GOP-appointed majority on the court halted Mr. Obama’s major carbon emissions-cutting plan, signaling another area where the courts were signaling an interest in reining in this White House’s expansive claim of executive powers.


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