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A Presidential Duty to Fill a Supreme Court Vacancy

The Huffington Post logo The Huffington Post 19/02/2016 Caroline Fredrickson
SUPREME COURT © Travelif via Getty Images SUPREME COURT

There was barely enough time for the country to consider and mourn the death of Supreme Court Justice Antonin Scalia, before Senate Majority Leader Mitch McConnell (R-Ky.), followed quickly by right-wing presidential candidates and pundits, declared that the Senate would block any attempt to confirm a successor.
Beyond the bluster, there are simple constitutional precepts that should be respected.
First, ACS expresses it condolences to Justice Scalia's family and friends, and we hope they do find space and time for mourning. But as I've noted the political storm, which formed too quickly after Justice Scalia's passing, calls for response.
It is the president's obligation to fill vacancies on the federal bench and the Senate's duty to provide "advice and consent" on those nominations. The Appointments Clause of the Constitution is straightforward, and does not contain a limit on the president's power to fill vacancies on the federal bench, especially of the kind Republicans are now demanding. It would be unfathomable to go through this term and a part of another one with a Supreme Court hobbled by a vacancy. Indeed University of Denver law school professor Melissa Hart told The Denver Post that if a vacancy of the high court were left open for such long stretch of time, "It would be a monumental crisis for the development of the law and the need to resolve large legal questions." The American people deserve better.
Moreover, what would Justice Scalia want? He's deserving of consideration here. He espoused a love for the Constitution, and how it was interpreted by its framers. Two justices were confirmed in 1796, one in 1804 and two in 1836. Those were all presidential election years. It is likely the late Justice Scalia would say history seriously undermines Republicans' claims about presidential power to fill Supreme Court vacancies.
Also there is no precedent for what Republicans are now demanding. Since 1975 all high court nominees, except Robert Bork, have been confirmed in a matter of months, not years. (For detailed information about the history of Supreme Court nominations made in presidential election years see this ACSblog post by Georgia State University law school professor Neil Kinkopf.)
According to a fall 2015 Congressional Research Service report the average time from nomination to confirmation for a Supreme Court justice is a little more than 2 months.
For example, Justice Clarence Thomas was confirmed after 99 days following two sets of hearings, Justice Sandra Day O'Connor was confirmed in 33 days and Justice Sonia Sotomayor in 67 days.
Sen. McConnell would have us believe differently. He quickly, probably less than an hour after Scalia's death was announced, said it was common practice that no high court nominations are considered during presidential election years. McConnell said the "American People should have a voice in the selection of their next Supreme Court justice."
But McConnell is attempting to concoct a new standard, one at odds with his past actions and comments.
In 1988, for example, Sen. Mitch McConnell voted to confirm Justice Anthony Kennedy. All other Republicans during that time voted the way McConnell did, and did so during the final-year of Ronald Reagan's second term. As reported by The New York Times' "Taking Note" blog, McConnell wrote this for the Kentucky Law Journal, "The Senate should discount the philosophy of the nominee. [...] The president is presumably elected by the people to carry out a program and altering the ideological direction of the Supreme Court would seem to be a perfectly legitimate part a Presidential platform."
It should also be noted that Democratic senators have not attempted to scuttle high court nominations in this manner. Eleven consecutive times a Democratic senate has voted to confirm Republican-appointed nominees.
So there is no compelling reason for Republicans to hold the president's forthcoming Supreme Court nominee hostage. Politicians and pundits calling for a freeze on filling this important vacancy should point to something other than partisan desires for doing so. And they can't.
The Senate needs to rise above partisanship and give fair and prompt consideration to President Obama's nominee to fill a vacancy on the Supreme Court.

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