The issue of Antonin Scalia’s successor on the United States Supreme Court continues to be the topic of intense debate. Senate Majority Leader Mitch McConnell caused a firestorm with his comment that the next president should do the nominating in order to avoid stirring the political rancor already driving this presidential election year. Accordingly, he said, the president’s choice would not be considered by the Republican-controlled Senate and Mr. Obama shouldn’t even try.
Understandably, Democrats from the president on down went ballistic, arguing that when a vacancy on the Supreme Court occurs a president is constitutionally mandated to nominate a replacement and the Senate must decide that nominee’s fate on an individual basis. It is not within the Constitution’s blueprint for the Senate to categorically refuse to consider a president’s choice.
The actual language of the relevant constitutional provision, Article 2, Section 2, is as follows:
[The president] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur, and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls [and] Judges of the supreme Court….
Frankly, the first few words seem to say that a president’s power of appointment is derived from the Senate. But no matter. In our view, for all the high-sounding posturing, at bottom is the age-old ultimate political question of who decides: will it be the left-leaning Barack Obama or the victor in November who Republicans hope will be closer to their conservative way of thinking?
Indeed, as we noted last week, President Obama’s views on the proper scope of the role of government – a key issue in constitutional litigation – is rather extravagant compared to Republican thinking.
It is instructive that no Democrats reacted negatively to some old statements by Vice President Biden that have surfaced.
In June 1992, when George H.W. Bush, a Republican, was president, the Senate Judiciary Committee, which holds hearings on presidential judicial appointments, was chaired by then-Democratic Senator Joe Biden. At the time, President Bush was facing an uphill battle for reelection that November, with the nation experiencing a sharp economic slowdown. There was talk in the air of at least one retirement from the Supreme Court prior to the election.
In a long, rambling speech on the Senate floor, Mr. Biden said that if a vacancy arose, President Bush should “not name a nominee until after the November election is completed.” He went on to say that if he did, “the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.”
He continued: “Senate consideration of a nominee under these circumstances is not fair to the president, to the nominee, or to the Senate itself.… Where the nation should be treated to a consideration of constitutional philosophy, all it will get in such circumstances is partisan bickering and political posturing from both ends of Pennsylvania Avenue.”
However, during the current controversy, before his 1992 remarks surfaced, Mr. Biden called for the Senate to consider any nominee Mr. Obama would choose to replace Justice Scalia. He likened leaving Mr. Scalia’s seat vacant until after the election to saying “God forbid something happens to the president and the vice president, we’re not going to fill the presidency for another year and a half.”
To be sure, the vice president tried to make a distinction between circumstances in 1992 and 2016. He said his earlier remarks were made during a presidential campaign that had only about five months to run while there are more than eight months to go before this year’s election. In addition, he noted that there was no actual vacancy then as there is now, only a possible one.
But these are all distinctions without differences. The principle is plainly the same in both instances. Indeed, Senate Republicans refer to his 1992 remarks as “Biden’s Rules” on how to treat the judicial nominations of a lame duck president.
One does wonder, though, why Senator McConnell and other Republican leaders challenged the president on making any nomination at all, thereby provoking a debate on constitutional mandates. They could have avoided all the controversy by maintaining a discreet silence and simply rejecting any individual the president might propose.
Surely they couldn’t have anticipated Mr. Biden’s remarks being unearthed and going viral. In fact, it seemed that once again they were destined to be outmaneuvered by the wily Mr. Obama. The Biden remarks were a true gift to the ham-handed Republicans.