Well before the official condolences and tributes could be made, before the flag outside the U.S. Supreme Court could be lowered to half-staff and before much was even known about the circumstances of Antonin Scalia's death Saturday in West Texas, Republicans senators were already pledging not to even consider — perhaps not even to bother conducting hearings over — any Supreme Court nominee offered by President Barack Obama.
And it wasn't just the two senators running their mouths at what had to be the most unpleasant, ill-informed and juvenile presidential debate so far this campaign Saturday evening in Greenville, S.C. — one expects that kind of extremism and anti-Obama invective in a field where carpet bombing is offered as a serious foreign policy choice — but the chorus included Senate Majority Leader Mitch McConnell. The Kentucky senator announced within hours of Mr. Scalia's death that 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."
But, of course, the people did have a voice, and there was an election — the one in which they re-elected Mr. Obama in 2012, and he has roughly one-quarter of his term left. The notion that the Mr. Scalia's chair should be vacant for one full year — and likely considerably more than that given the next president's nominee would still have to submit to a lengthy review process in 2017 — is outrageous. It represents the kind of obstructionism and gridlock that voters hate and that Congressional Republicans seem to revel in.
We understand that Mr. Scalia was a giant to his fellow political conservatives. Even those of us who disagreed with him nearly all the time recognize his intellect and the scope of his contributions — for good or ill — to American jurisprudence. And yes, his replacement could tilt the nation's highest court in a substantially different direction and away from the 5-4 conservative majorities of the past. But that's a reason, perhaps, to vote against a particular nominee, not to decide that a sitting president should be stripped of his authority to nominate anyone — which is essentially what Republicans are attempting to do. Mr. Scalia, who advocated for "originalism" in the court's interpretations of the constitution whether it suited his politics or not, might even be appalled by that.
While it's no surprise that many in the GOP worry over the future direction of the court given Justice Scalia's tremendous influence in the past, the strategy of having the Senate dig in its heels for a year over a nominee sight unseen would seem a politically risky proposition. First, a 4-4 split on the court means a number of lower court rulings will be affirmed for lack of a majority to overturn them. Given that Democratic appointees now constitute a majority within the U.S. courts of appeals, that likely means there's going to be a leftward shift anyway.
There's certainly no guarantee that the next president will be a Republican, and it's entirely possible that a Hillary Clinton or Sen. Bernie Sanders will select a replacement far more liberal than Mr. Obama might choose under the circumstances. Indeed, there is much speculation that a leading candidate is Sri Srinivasan, the 48-year-old Stanford-educated Indian-American who the Senate confirmed unanimously for a seat on the U.S. Court of Appeals for the D.C. Circuit three years ago to became the first appeals court judge of South Asian descent. He worked for the U.S. Solicitor General in the George W. Bush administration, which has never made him a darling of liberals.
Fighting an Obama nominee seems particularly foolish given that the next justice likely to leave the court is liberal-leaning Ruth Bader Ginsburg, 82, who has had health problems including cancer. Justice Stephen Breyer, a 77-year-old fellow liberal who some Democrats had hoped would retire during the Obama presidency, may not be far behind. Both are likely to be replaced by the next president, so it is whoever fills their seats — and not Mr. Scalia's — who will potentially redefine the judicial philosophy of the court.
Election-year Supreme Court vacancies have a mixed track record. Anthony Kennedy was approved by the Senate in 1988, the last year of Ronald Reagan's second term. In 1968, Justice Abe Fortas faced a Senate filibuster when he was nominated to be chief justice replacing Earl Warren in the last year of Lyndon Johnson's term, and his nomination was eventually withdrawn, but it did not leave an empty seat on the court. In both cases, Senate action took place when the nominee was known and his qualifications examined and debated, not simply because a majority of senators decided that a sitting president shouldn't be able to offer anyone — no matter who that "anyone" is — for such an important post.