Appointed by President Ronald Reagan and unanimously confirmed by the Senate in 1986, Supreme Court Justice Antonin Scalia was a towering figure whose sharp wit and formidable intellect were rivaled only by a decades-long fidelity to our founding document and an enduring commitment to the rule of law. His death stands as a tragic loss for our country. Finding the right person to take the seat he occupied will clearly be a monumental task.
It may be a consequential challenge, but we think it’s one the American people are more than equipped to tackle.
Rarely does a Supreme Court vacancy occur in the final year of a presidential term, and the Senate has not confirmed a nominee to fill a vacancy arising in such circumstances for the better part of a century. So the American people have a particular opportunity now to make their voice heard in the selection of Scalia’s successor as they participate in the process to select their next president — as they decide who they trust to both lead the country and nominate the next Supreme Court justice. How often does someone from Ashland, Ky., or Zearing, Iowa, get to have such impact?
We don’t think the American people should be robbed of this unique opportunity. Democrats beg to differ. They’d rather the Senate simply push through yet another lifetime appointment by a president on his way out the door. No one disputes the president’s authority to nominate a successor to Scalia, but as inconvenient as it may be for this president, Article II, Section 2, of the Constitution grants the Senate the power to provide, or as the case may be, withhold its consent.
It was interesting to see Senate Minority Leader Harry Reid (D-Nev.) write in The Post just a few days ago that “the Senate’s constitutional duty to give a fair and timely hearing and a floor vote to the president’s Supreme Court nominees has remained inviolable.”
But that’s not what he said on the Senate floor about judicial nominees when a Republican was in the White House.
“The duties of the United States Senate are set forth in the Constitution of the United States. Nowhere in that document does it say the Senate has a duty to give presidential nominees a vote. It says appointments shall be made with the advice and consent of the Senate. That’s very different than saying every nominee receives a vote.”
“The Senate,” he said then, “is not a rubber stamp for the executive branch.”
Indeed, this is the kind of logic that led more than two dozen Democratic senators — including Sens. Reid, Charles Schumer (N.Y.), Patrick Leahy (Vt.), and then-senators Barack Obama (Ill.), Joe Biden (Del.), John F. Kerry (Mass.) and Hillary Clinton (N.Y.) — to vote to deny President George W. Bush’s nominee to the Supreme Court, Samuel Alito, an up-or-down vote.
That was when then-senator Obama seemed to have a very different, and very robust, appreciation for the Senate’s constitutional authority.
That was when Schumer, today the heir apparent as Senate Democratic leader, gave a lengthy and stirring speech to the left-leaning American Constitution Society — 18 months, or one-and-a-half years, before the end of Bush’s term — in which he declared that the Senate “should reverse the presumption of confirmation” and “not confirm a Supreme Court nominee except in extraordinary circumstances.”
Even if some Democrats may be having amnesic experiences today, it’s clear that concern over confirming Supreme Court nominations made near the end of a presidential term is not new.
We also know that Americans issued a stinging rebuke to this president and his policies in our latest national election, delivering a landslide for the opposition party as they handed control of the Senate to Republicans in 2014.
Given that we are in the midst of the presidential election process, we believe that the American people should seize the opportunity to weigh in on whom they trust to nominate the next person for a lifetime appointment to the Supreme Court. It is today the American people, rather than a lame-duck president whose priorities and policies they just rejected in the most-recent national election, who should be afforded the opportunity to replace Justice Scalia.
Mitch McConnell, a Republican from Kentucky, is majority leader of the U.S. Senate. Chuck Grassley, a Republican from Iowa, is chairman of the Senate Judiciary Committee.