Do your job, Senators. Let the president do his with the Supreme Court

The Observer editorial board

Barack Obama, here speaking Saturday on the death of Supreme Court justice Antonin Scalia, said he will nominate a replacement.
Barack Obama, here speaking Saturday on the death of Supreme Court justice Antonin Scalia, said he will nominate a replacement. AFP/Getty Images

Three Novembers ago, U.S. voters reelected Barack Obama as president. The winning margin was not insignificant – about five million votes – but regardless of the number, voters gave the president four more years to lead the country.

Republicans think it should be three.

In an appalling display of political rationalization, Senate Majority Leader Mitch McConnell indicated this weekend that he’ll block any Supreme Court nomination the president makes to replace the vacancy created by justice Antonin Scalia’s death. Republican senators, as well as most of the GOP candidates for president, lined up in support of McConnell.

Their reasoning? It’s a presidential election year, and voters deserve a say this November in who the next Supreme Court justice will be. But voters already had that say, three Novembers ago. Then, presidential candidates Mitt Romney and Obama made clear that Americans were deciding who got to nominate Supreme Court justices for the next four years.

Republicans also say it’s unfair to have a president who’s leaving office in less than a year nominate a Supreme Court justice whose impact will be felt for much longer. But presidents have long made important decisions and collaborated on meaningful legislation in the final year of a term.

Republicans didn’t mind at all, for example, when President Bill Clinton worked with GOP lawmakers to pass historic welfare reform in mid-1996. Dwight Eisenhower didn't take his last year off; he fought for the far-reaching Civil Rights Act of 1960, which introduced penalties for anyone obstructing the right to register to vote.

Presidents, along with the Senate, also have done their jobs filling Supreme Court vacancies in presidential election years. Since 1900, that’s happened six times, including when a Democratic-controlled Senate confirmed Anthony Kennedy, a Ronald Reagan nominee, in February 1988.

Now, Republicans are content with a Supreme Court that will be paralyzed by a 4-4 ideological split for at least the next year. That’s politically risky, and it might quickly backfire in North Carolina, where a 4-4 tie would uphold a federal court ruling this month that invalidated North Carolina’s 1st and 12th congressional districts.

The 4-4 split also will stall several far-reaching cases – including potential conservative wins on voting rights, labor unions and Obamacare’s controversial contraception mandate. In those cases and others, a Supreme Court tie will force justices to defer to lower court rulings or set cases aside to be reargued later. Neither offers the kind of justice the Supreme Court is supposed to deliver.

Republicans say that’s OK, because they won’t win those cases anyway if an Obama nominee replaces Scalia. As presidential candidate Ted Cruz put it bluntly this weekend: “We’re not going to give up the U.S. Supreme Court for a generation by allowing Barack Obama to make one more liberal appointee.”

Such hyperbole ignores a basic truth: Cruz and his Senate colleagues can vote against any nominee Obama brings forth. Republicans, in fact, hold a majority in the Senate, so the only thing they have to fear is that some of their own might actually vote in favor of a qualified Supreme Court nominee.

Instead, they seem ready to do what Senates don’t do – deny the president and the people a hearing on a Supreme Court nomination, which would deny the country a fully operating Court.

North Carolina’s senators, Richard Burr and Thom Tillis, should recognize this. They should urge McConnell to allow the president’s Supreme Court nomination to proceed. They should evaluate and vote on whomever that nominee is. Do your job, senators. Let the president do his.