Mere hours after news broke of Supreme Court Justice Antonin Scalia’s death on Saturday, Feb. 13, Republicans made it clear they believe President Obama should forgo nominating a replacement for Scalia and allow the next president to do so, despite the constitutional rights in place.
President Ronald Reagan appointed Scalia to the Supreme Court in 1986, and he has served as the intellectual anchor of the Supreme Court’s conservative wing; as a self-proclaimed “originalist,” he strongly believed in interpreting the Constitution as what it meant to the founders and refuted those who suggested construing it to fit current trends and opinions. Losing his strong conservative voice on the court is a big blow to Republicans, and they lost no time in expressing their views on his replacement.
Prior to the debate, other political leaders released statements expressing their condolences to the Scalia family, but Senate Majority Leader Mitch McConnell skipped the formalities and made it clear he did not support Obama nominating a candidate during an election 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,” said McConnell.
Republican candidate Donald Trump voiced the same opinion at the start of the 9th GOP debate. “I think it’s up to Mitch McConnell and everybody to stop him,” said Trump. “It’s called delay, delay, delay.”
Despite being the only candidate to speak out against how quickly the Republicans jumped to debate after the loss of such a great political mind, Ohio Gov. John Kasich eventually agreed with his GOP competitors and stated, “I believe the president should not move forward, and we should let the next president decide.”
While this may be the Republicans’ hope for the situation, current precedent disagrees.
“The Republican idea that the president should wait until a new president is elected… that’s never happened,” said Dr. Thomas Hunter, Associate Professor of Political Science at UWG. “Presidents have nominated people up to their last week in office. Obama has every single right to nominate someone, and he probably will.”
It seems Republicans are ignoring the Constitution, hoping if one of their six remaining candidates wins the presidency, they will have the chance to nominate a sufficiently conservative replacement for Scalia. But, in Scalia’s own words, “The Constitution is not a living organism. It’s a legal document, and it says what it says and doesn’t say what it doesn’t say.” So what does the Constitution say about this situation?
The Constitution explicitly grants the president the right to nominate a new justice under Article II Section II; there are no asterisks indicating time constraints in regards to election years. If Obama does chose to pass the nomination to the next president, it would be the first time since 1900 that an incumbent president would purposefully leave a justice seat open, according to SCOTUSblog.
However, the same document grants Senate the power to “delay, delay, delay” until after a new president is elected if they so chose. Given statements made thus far, it’s plausible the Republican Senate would intentionally hinder any of Obama’s nominations.
Obama released a statement late Saturday announcing his plan for nominating a justice “in due time,” squashing Republican hopes that he would sit idly for 11 months. Whether or not the Senate confirms his nomination and how this will affect the 2016 election is yet to be determined.
“We’re having one of the most interesting presidential elections of modern times,” said Hunter. “This just adds an entire new wrinkle to it.”