In Supreme Court battle, another effort to delegitimize a president

It should be clear from his public pronouncements that Supreme Court Justice Antonin Scalia would have disagreed with Senate Majority Leader Mitch McConnell when McConnell said the Senate should hold off considering a replacement for the late justice until after the next president takes office.

Scalia was famously a constitutional originalist. He believed the document means what it says.


Article II, Section 2 of the Constitution says the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court. …"

The word "shall" makes clear that the president — not the next president — has a duty here. So does the Senate. I don't see the word "delay" anywhere in the relevant section.

I'm sure Scalia would have concurred. Certainly his most ardent fans, and fans of originalist thinking, would agree with me on that.

But here comes McConnell, saying the Senate should act only after the next inauguration, in January 2017.

"The American people," he said, "should have a voice in the selection of their next Supreme Court Justice."

As if that hasn't already happened.

Last I checked, Barack Obama is president. He was elected in 2008 and again in 2012.

Here's some more originalism for you (Article II, Section 1): "The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years. …"


Let's be clear about what's happening here: McConnell is the Republican leader who vowed to make President Obama a one-term president. His insinuation that the duly elected president has no standing to make an appointment to the Supreme Court continues something that started even before Obama took his oath: the effort to delegitimize him.

It started with questions about the president's citizenship and eligibility for office — from the wild-eyed birthers of 2008 to Donald Trump's high-profile pursuit of the president's birth certificate in 2011. Trump has continued to suggest that Obama's presidency is illegitimate during the current campaign. Asked by CNN's Anderson Cooper if he believed Obama was born in the United States, Trump said, "I really don't know."

Last week, a spokesman for another presidential candidate, Marco Rubio, told CNN that Obama was "intentionally trying to destroy" the country.

Seldom, if ever, do the Republican presidential candidates refer to Obama as President Obama.

It has never been enough for the Republican Party to merely oppose Obama's positions and policies. They've tried to demonize and delegitimize him. McConnell saying the Scalia replacement should wait until after the next election is part of this ongoing campaign, and it's long past sickening.

"I am appalled that Republicans are even suggesting that the President should forgo his constitutional duty to put forth a nominee to replace Justice Scalia," said Rep. Elijah E. Cummings, the Baltimore Democrat. "I see it as another attempt by Republicans to nullify the votes of citizens.


"We've seen it in their efforts to suppress the vote. We've seen it in Flint, Michigan, where they took over the local government and put the lives of its residents at risk. And we are seeing it now as they threaten to block the president from doing his job with 11 months left in his term. I urge President Obama to ignore the Republicans' partisan pettiness and submit a nominee at the earliest possible moment."

Sen. Barbara A. Mikulski issued this statement: "Barack Obama is our President until January 20, 2017. He has the Constitutional authority and responsibility to submit a nomination to fill the vacancy left with Justice Scalia's passing. President Obama should exercise that authority. And the Senate should fulfill its constitutional duty to hold a timely hearing and a vote on the Senate floor on the President's nominee."

Sen. Ben Cardin is traveling in Africa, but issued this: "The process of Advice and Consent for nominees to the United States Supreme Court is one of the Senate's core constitutional responsibilities and should not be delayed."

Democratic Reps. John Sarbanes and Dutch Ruppersberger also said Obama should move forward. Rep. Andy Harris, the only Republican in Maryland's congressional delegation, did not respond to a request for comment.

In 2010, the president spoke to Republican members of Congress at the annual House Republican retreat at the Renaissance Baltimore Harborplace Hotel. It was an election-year outreach to representatives who had pledged to oppose just about everything Obama proposed, starting with the Patient Protection and Affordable Care Act.

"Many of you, if you voted with the administration on something, are politically vulnerable in your own base, in your own party," the president said. "You've given yourselves very little room to work in a bipartisan fashion because what you've been telling your constituents is, this guy is doing all kinds of crazy stuff that's going to destroy America. … This is part of what's happened in our politics, where we demonize the other side so much that when it comes to actually getting things done, it becomes tough to do."

Actually, Mr. President, pretty much impossible.