Justice Antonin Scalia was a brilliant jurist who played a critical role on the U.S. Supreme Court. He was someone who truly understood and respected the text of the Constitution, serving as the court’s constitutional watchdog, perhaps most especially through his dissents. His strong, grounded approach will be sorely missed.
Choosing the replacement to fill Justice Scalia’s vacancy has already become this year’s political firestorm in the U.S. Senate. Upon nominating Merrick Garland, President Obama proved what we already knew — that he yearns to significantly shift the balance of the high court for a long time to come. The president has less than a year left in his tenure, but a Supreme Court justice will impact our country for decades.
While President Obama is well within his constitutional authority to name a nominee, the Constitution clearly states that the U.S. Senate is under no obligation to either hold a hearing or vote on a nominee.
The nonpartisan Congressional Research Service issued a report on March 9, 2015 — nearly a year before Justice Scalia passed — entitled, “Senate Consideration of Presidential Nominations: Committee and Floor Procedure.” Upon review of the U.S. Constitution and U.S. Senate Rules, it concluded: “A committee considering a nomination has four options. It can report the nomination to the Senate favorably, unfavorably, or without recommendation, or it can choose to take no action. It is more common for a committee to take no action on a nomination than to reject a nominee outright.”‎
To suggest otherwise is to promote a fairy tale, as practically every Senate Democrat and many others on the left have done, and it’s one that ignores those same Democrats’ past words and actions on this precise subject.
As the March 16, 2016 Washington Post Fact Checker summarized: “Democrats who suggest otherwise are simply telling supporters a politically convenient fairy tale.”
Rather than leave this monumental decision to Washington’s political insiders, I think the American people should be driving this train through the presidential election. We have a unique opportunity to elevate the issue of judicial appointments to the important status it should always have — to appropriately make it a significant issue in this presidential election. And as a member of the Senate and its Judiciary Committee, I am absolutely committed to this course, which brings us back to the Democrats’ fairy tale. This is exactly the approach virtually all leading Democrats have advocated in the past.
When facing a similar situation toward the end of President George H.W. Bush’s term, then-Senate Judiciary Chairman Joe Biden created what has been termed the “Biden Rule” of not taking up U.S. Supreme Court and circuit court nominees in a presidential election year. As he explained in 1992: “President Bush should consider following the practice of a majority of his predecessors and not name a nominee until after the November election is completed.”
Democratic Leader Harry Reid has certainly supported this prerogative of the Senate in the past. As he explained in 2005: “Nowhere in [the Constitution] does it say the Senate has a duty to give presidential [nominees] a vote.”
For these same Democrats to now insist that we are somehow failing to do our job by not immediately acting on the Merrick Garland nomination is hypocritical and untrue. Our foremost job as elected officials is to uphold the voices of our constituents, which is exactly what empowering them through this year’s election will do.
The truth of the matter is that Senate Democrats are merely playing politics with this issue. One has to question why they are so adamantly against allowing the American public to have a say in the nomination process.
Perhaps it has to do with the fact that, far too often the Obama administration has forced through its far-left agenda against the will of the American people, often brushing aside important constitutional safeguards and circumventing the separation of powers our forefathers envisioned. When it comes to choosing the next Supreme Court justice, who will likely serve for decades, there is far too much at stake to prioritize politics over sound and lasting legal decisions.
Our nation is facing a crossroads in which our court system will have major decisions to make on a number of crucial issues — Second Amendment rights, job-killing regulations, Obamacare, religious freedom and more. On all of this, we have a unique opportunity to put all of us as citizens in the driver’s seat.
Senate Democrats should stop propagating a fairy tale and admit that they themselves demanded the same thing when the shoe was on the other foot. The American people should decide who the next Supreme Court Justice is, not a president who is about to walk out the door.
David Vitter is the senior U.S. senator from Louisiana and serves on the Senate Judiciary Committee. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions.
