While President Barack Obama is reviewing candidate files to determine who to nominate as a Supreme Court justice, the debate still rages over whether he should actually do so. Republicans argue that the president should let the next president choose. They say the people should choose the president who selects the next Supreme Court justice. The result would be a vacancy stretching into summer 2017 since the election does not occur until November, the new president does not take office until Jan. 20, and the process of selection and then confirmation would take several months, at a minimum, following that.
Of course, that argument ignores the fact that the current incumbent has been elected twice by the majority of voters — in 2008 and 2012 — to do just that. If the president were to abandon other responsibilities of his office 11 months before his term ended, he would be roundly condemned. Yet, Republicans contend he shouldn’t perform this constitutionally appointed role to nominate members of the federal judiciary.
At the same time, the Constitution does not require a president to fill a vacancy in a certain time period. For various reasons, presidents have gone for quite a few months before nominating successors. President Obama could choose not to fill a vacancy. Or, if the Senate rejects the individual he names, he may choose not to try again. Those are the president’s prerogatives.
At the same time, Democrats are claiming the Senate must vote to confirm or reject. That is untrue. There have been 18 cases in American history when the Senate did not vote yea or nay on a Supreme Court nominee. The 1968 case was the most recent example when Justice Abe Fortas withdrew after a filibuster. In some cases, the Senate delayed so long the candidate eventually withdrew. In others, the nomination simply died with that Congress. Whether the Senate votes on a nominee or not is the prerogative of that institution.
Nor is it essential that the Senate hold hearings on a nominee, as some Democrats are claiming. Judiciary Committee hearings are routine today, but they have not always been. In the past 60 years, every Supreme Court nominee has been referred to the Judiciary Committee for consideration, including a hearing. But prior to that, hearings were sporadic. The Senate sets its own rules about how to handle presidential nominations.
These claims about what the president or the Senate must or must not do are simply pieces of partisan rhetoric. Unfortunately, partisan rhetoric and behavior has become the norm in the past 20 years. It is hard to believe that in 1994 Justice Stephen Breyer was opposed by only nine senators and Ruth Bader Ginsburg by only three in 1993. Today, any tactics to support or block a nomination are viewed as fair game.
That causes participants to engage in mental gymnastics to explain previous positions. On the Democratic side, Joe Biden now supports President Obama’s decision to nominate a successor to Justice Scalia. But in 1992, then-Sen. Biden suggested that the Senate should block appointments to the court by then President George H.W. Bush. In 2007, Sen. Charles Schumer of New York made the same point in urging Senate Democrats to seek to stop any appointment by President George W. Bush in his final year. Not surprisingly, Republicans such as Senate Majority Leader Mitch McConnell who are currently arguing for delay were on the opposite side in those earlier debates about Supreme Court nominations in presidential election years.
Of course, much of the pressure to be partisan is coming from issue activists on both sides. They pressure senators to adopt a “take no prisoners” approach to the process in order to support or block nominees. Satisfying partisan bases has become the paramount concern.
The solution is for both sides to declare the process off-limits from such machinations. That means respecting the process. It is fine to disagree on outcomes, but when the process is taken hostage by extremist issue activists, and their representatives in the White House and the Senate, then the system is broken. Unfortunately, when it comes to judicial selection, this is where we are.
Richard Davis is a professor of political science at Brigham Young University. He is the author of "The Liberal Soul: Applying the Gospel of Jesus Christ in Politics." His opinions do not necessarily reflect those of BYU.