If Kathleen Parker and my columns today appear to echo each other somewhat, it is not intentional, although I’m happy to agree with her on the issue of President Barack Obama’s naming of a replacement for late U.S. Supreme Court Justice Antonin Scalia.
My thoughts on this started not long after his death on Feb. 13. I expressed them this way on a Facebook post that evening:
I was not particularly fond of U.S. Supreme Court Justice Antonin Scalia. I am sorry, however, to hear of his passing, especially since, despite his age, it was apparently sudden.
To everyone debating the matter of his replacement on the bench let me ask this: How would you feel if one of the justices had passed away during the last year of George W. Bush’s presidency? Would you think it unfair of him to nominate a replacement -- that it should have been left to the next president, who happened to be Obama?
I wouldn’t have. While not a Bush fan, either, I would have respected his right as president at the time to nominate someone AND would have wanted Democrats to fairly consider the nomination.
This is how the process should work, regardless of who is in the White House and which party has control of the House and/or Senate.
A number of people hit the “Like” button to show their agreement. Some actually commented, including my father who’s a pretty devout Libertarian-leaning Republican. He agreed with me in general, but wondered if the process became so politicized after the debacle of Robert Bork’s nomination by President Ronald Reagan to the Supreme Court in 1987.
I responded to my father, in part, this way:
If they had specific reasons not to want Bork, that’s the Senate’s prerogative. If they were blocking any Republican justice nomination, I would agree that was wrong. And, as the old saying goes, two wrongs don’t make a right. If Republican senators want to be able to say to the world they’re better than Democrats, they should take each nomination on their merits and not just say they’re going to block any nomination. That attitude presupposes a Democrat, including Obama, wouldn’t nominate someone Republicans might find palatable.
As it turns out, history shows Democrats in 1987 were blocking Bork specifically, not merely anyone of Reagan’s choosing. Indeed, Reagan’s next appointee, Justice Anthony Kennedy, while thoroughly examined, ended up receiving bi-partisan support.
A couple of people disagreed with me, one in particular who said Obama’s nominations should be blocked because he “wants to tip the scales.”
Here’s my response:
It seems every politician wants to “tip the scales.” The question I’m asking is whether -- regardless of party -- whoever is president has the right and, perhaps, even the responsibility, to make a nomination when there is a vacancy. Congress then has the right to consider the nomination and [...] the responsibility to do so dispassionately on the merits of the person being nominated.
Personally, I would love for the president to nominate a moderate, someone he feels could truly examine both sides of an issue and issue a ruling accordingly. Do justices have their prejudices? Of course they do; they’re human. This doesn’t mean they can’t recognize those biases within themselves and do their best to set them aside to deal with an issue.
As Parker points out below, the Constitution says the president shall nominate justices with the advice and consent of the Senate. And as U.S. Senator Elizabeth Warren, of Massachusetts, added, “I can’t find a clause that says ‘...except when there’s a year left in the term of a Democratic president.’”
The simple fact is the current president, who happens to be Obama, has the responsibility to nominate Scalia’s replacement.
The Senate has the responsibility to hold hearings and approve or reject the nomination. That, quite simply, is all there is to it.