Within an hour of the announcement of U.S. Supreme Court Justice Antonin Scalia’s Feb. 13 death, Senate Majority Leader Mitch McConnell, R-Ky, led an unseemly chorus of senators declaring that any Barack Obama choice of a successor would be unacceptable and implying that the Senate should ignore for at least 12 months its “advice and consent” role in the selection of Supreme Court members.
“The American people,” McConnell rumbled, “should have a voice in the selection…” in November.
For their parts, the White House and Senate Democrats quickly pointed out that the people had already spoken by re-electing Obama, and the president has both the constitutional right and the moral obligation to move quickly.
It was a dual barrage of disingenuity, and an argument that the man over whose flag-draped coffin it was being conducted probably would not have enjoyed, for Scalia relished what he called “intellectual thrust and parry,” and this wasn’t that.
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Scalia himself, however, was an exemplar of one side of the political extremism that appears to be propelling us toward yet-another instance of governing gridlock: unwilling to compromise, unrestrained and often insulting in the language by which he rejected opposing views, and unconcerned about such niceties as the court’s traditional aversion to taking public positions on policy issues. He did as much as any justice since William O. Douglas to damage the court’s credibility and disrupt its traditional decorum.
Scalia’s absence interrupts the court’s recent pattern of disconcerting predictability: four reliably conservative votes on any issue and four reliably liberal ones, and Justice Anthony Kennedy as a swing vote. A great deal more than ordinary weight will be attached to the next appointment.
Assuming that any president who nominates Scalia’s successor will pick someone whose political orientation is fixed and well-known, the country can expect years, perhaps decades, of decisions sharply reflecting either a liberal or a conservative bias. Whichever path the bias takes, such ideological stubbornness is not healthy for the country, fair to potential litigants or in harmony with the rule of law.
A less draconian third way exists, but it would require a level of moral courage and political leadership not seen in recent years: more emphasis on the “advice” part of the Constitution’s “advice and consent” decree.
For each major party, the risk-reward stakes are enormous. If Obama insists upon a predictable liberal, he risks surrendering the appointment altogether. By obstructing the entire process, Republicans would risk a voter backlash that could cost them the White House, and if that happened, they would be stuck for at least four more years and their mantra about the people having a say would have backfired. They would not be able to fight off indefinitely a deeply liberal appointment without leaving the court one justice short for an unacceptable period.
Instead of merely obstructing, Senate Republicans should send Obama a list of three to five experienced jurists who are motivated more by judicial temperament than ideology (they do exist) and pledge to support them. That would shift the bulk of risk onto Obama, and the result could be a compromise that could begin to repair the court’s integrity.
It won’t happen, of course. But we’d be much better off if it did.
Davis Merritt, a Wichita journalist and author, can be reached at email@example.com.