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Weighing A High Court Nominee Trashes The Constitution, Republican Says

The Huffington Post The Huffington Post 9/03/2016 Michael McAuliff
ATHENA IMAGE © Bill Clark via Getty Images ATHENA IMAGE

WASHINGTON -- The Constitution may say that the president shall appoint judges with the advice and consent of the Senate, but doing so now would be to trash that very Constitution, Sen. Tom Cotton (R-Ark.) argued Wednesday.

Senate Majority Leader Mitch McConnell (R-Ky.) declared almost immediately upon the death of Justice Antonin Scalia that the Senate would entertain no replacement named by President Barack Obama, leaving the seat vacant for more than a year.

McConnell's members have been arguing since then that the Constitution is on their side.

They note that although the founding document says the president "shall" nominate, and that he "shall" appoint judges with consent from the Senate, nowhere is there a deadline specified.

And they've pointed to numerous past statements by Democrats variously arguing for stalling Republican nominees, including by then-Sen. Joe Biden in 1992 and Senate Minority Leader Harry Reid (D-Nev.) in 2005.

Cotton took it a step further Wednesday, arguing that holding hearings and votes on an Obama nominee, as Democrats now want, would stomp all over the Constitution because Obama, who was re-elected in 2012, is a "lame duck president with a stale mandate."

The mandate Obama got in 2012 is less important than the one Cotton got in 2014, he argued. And since Cotton pledged to Arkansas voters that he would oppose Obama, it would be wrong to take up any Obama nominee.

"Many of my Democratic colleagues have come to this  floor to demand that the Senate's longstanding practice of declining to confirm Supreme Court justices in an election year be discarded, and a nominee considered right away," said Cotton to set up his argument.

He noted that in 2005, Reid argued that the Constitution guarantees that presidential nominees get advice and consent from the Senate, but not necessarily a vote.

The only reason Reid wants a forthcoming Obama nominee to get hearings and a vote now is because Obama is a Democrat, Cotton suggested.

"If the current president were not a fellow Democrat, would the  minority leader still be inclined to trash the constitutional  prerogatives of the Senate and abandon its longstanding  customs?" Cotton asked.

Cotton's argument, however, ignored some history. In fact, many justices have been confirmed in election years, most recently in 1988. Indeed, a Washington Post review found about a third of all presidents appointed justices in election years, including six lame ducks.

Republicans ignore those appointments by narrowing their criteria to a set of circumstances that are so rare they sound like the fine print on a sweepstakes. They say that no justice has been appointed and confirmed in an election year when the vacancy arose in the election year of a president in the final year of his final term while the opposing party controlled the Senate.

Presidents have only been term-limited since 1951, leaving only four times in U.S. history that those specific circumstances could arise. The closest it came was 1988, when President Ronald Reagan had nominated Anthony Kennedy late the year before, with the conformation hearings and vote happening in the election year under Democratic control.

Democrats have pushed back on the GOP's repeated citations of their seemingly hypocritical comments by pointing to a different fact: They did not actually block any Supreme Court nominees, and indeed confirmed many more lower court justices than the current GOP-led Senate, which has managed just 16.

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