Democrats are crying foul, even crying racism, because Senate Republicans say they will not confirm President Obama's nominee for the Supreme Court to replace Antonin Scalia, who died on Saturday. Some are hyperventilating about "constitutional crisis."
Nonsense. Republicans have the Constitution, history, pragmatism and democracy on their side. Obama and the Democrats have only chutzpah.
The right to block nominations is built into the Constitution as a Senate power. And this wouldn't be the first time a lameduck president was prevented from filling a vacancy.
Article II, Section 2 of the Constitution states that the president shall "nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the supreme Court." This has always been understood to mean that the Senate must approve of presidential nominations with a majority vote. If it rejects or even simply withholds consent, the nomination doesn't carry.
No vote; no crisis.
Some will argue that Republicans are behaving boorishly if they simply refuse to take up a nomination. Maybe, but the likes of Sen. Charles Schumer are hardly in a position to complain of boorishness.
No lameduck president for 60 years has successfully nominated a Supreme Court justice in his last year in office, as the Washington Examiner's Michael Barone recently pointed out. Lyndon Johnson was the most recent president blocked from doing so. He is in good company with John Quincy Adams, whose nominee the Senate voted to postpone until Andrew Jackson took office.
In four other cases, Supreme Court nominations failed because the Senate took no action at all, not even a vote to postpone, until the next president was sworn in.
That the Democrats wouldn't hesitate to do exactly what the Republicans are doing now is plain enough. The GOP can argue truthfully that it has learned a few tricks from adversaries across the aisle.
George W. Bush still had seven years left to serve — yes, seven — when Senate Democrats began bottling up his perfectly qualified appointees to the federal appeals courts. When they held the majority in the Senate, Democrats blocked these even from getting a hearing, in hopes that they could defeat Bush in 2004 and fill the vacancies themselves.
Democrats lost their majority in 2002, and then launched a filibuster that was then unprecedented against some of the nominees. And they did so from racial motivations. Their internal communications, which were leaked, showed that Senate Democrats feared political damage from having the conservative Miguel Estrada elevated as the first Hispanic Supreme Court justice. So they blocked him.
Sen. Chuck Schumer, D-N.Y., declared in July 2007, a full 19 months before Bush left office, that the Senate should refuse to consider any Bush appointments to the Supreme Court thereafter.
Even before that, a young senator named Barack Obama was part of the Senate effort to prevent any vote on the confirmation of Samuel Alito, at a time when Bush still had just over three years left to serve.
If the public dislikes Republicans blocking an Obama nominee, and we're sure Democrats will make as much of it as possible, they can vote them out in the next election. That's the constitutional way to resolve this non-crisis.
If they elect Hillary Clinton, she will pick Scalia's replacement, and if they give her a Democratic majority, she will do it with ease. If they elect Republicans and a Republican president, they will also have made clear who has a mandate to fill the vacancy.
Republicans violate neither the Constitution nor precedent by blocking Obama's nominee. They take a political risk, but that's what politics is about.
Ultimately, voters will pass judgment on senators' actions. Scalia, who strongly believed elections are better arbiters of society's values than courts are, would probably approve that his replacement is worked out this way.