Statesmanship and Integrity MIA in Republicans' Approach to SCOTUS Nomination
Once again the Republicans have shot themselves in the foot by naively thinking it is better to not even consider President Obama’s prospective appointment of a justice to replace Antonin Scalia. Somehow in their interpretation of Article II, Section 2, paragraph two of the U.S. Constitution, known as the Appointments Clause, that empowers the President to appoint certain public officials with the "advice and consent" of the U.S. Senate, allows the Senators not to even entertain the President’s nomination. I care less whether they are correct in their interpretation than whether it is ethically right to not go through the process, ask the probing questions that Americans want to be asked, and then take an up or down vote.
The Republicans are truly losing an opportunity to provide the American public with insights into the mind and convictions of the potential nominee as well as President Obama’s objectives in selecting a replacement for Justice Scalia. We could learn a lot about the nominee and Republicans could ask the probing questions that, quite frankly, would add significant value to the needed debate about political philosophy that is the centerpiece of the nomination process on both sides in 2016.
Here is the reaction of many prominent Republicans. Their main talking point is that in this election-year nomination it is unprecedented that a sitting, lame duck President makes such nomination in their last year in office.
“The fact of the matter is that it's been standard practice over the last 80 years to not confirm Supreme Court nominees during a presidential election year," Republican Senate Judiciary chair Chuck Grassley said. “It has been over 80 years since a lame duck president has appointed a Supreme Court justice", Florida Senator Marco Rubio said in the Republican presidential debate two weeks ago; "We have 80 years of precedent of not confirming Supreme Court justices in an election year", according to Texas Senator Ted Cruz.
Technically, the issue turns on how one defines “lame duck”. A standard definition is a lame duck, in politics, is an elected official who is approaching the end of their tenure, especially one whose successor has already been elected. The official is often seen as having less influence with other politicians due to their limited time left in office. To extend this to eleven months still in office is a stretch and, more importantly, it ignores the spirit of the process to nominate a replacement for Scalia so that the Supreme Court could operate at full strength as soon as possible and not be hand tied by a 4 to 4 vote.
As a factual matter, Ronald Reagan nominee Anthony Kennedy was (unanimously) confirmed to the court in February 1988 – not only an election year but a year in which Reagan was term-limited and could not run again. So the talking point is wrong. (Grassley, by the way, broke with his own self-professed "standard practice" and voted to confirm Kennedy.)
It is true that Kennedy was nominated in 1987. When was the last time in history that a president nominated someone for the court in an election year and the Senate confirmed them? That would be Franklin Roosevelt nominating Frank Murphy, then the attorney general, on January 4, 1940, and the Senate confirming him 12 days later. So that was 76 years ago.
Here is a useful analogy. What if the vice president had to assume the presidency? Who becomes the new vice president? The 25th Amendment, ratified in 1967, provides that the new president appoints someone to fill his or her old position, subject to congressional approval. Would the Republican Senators block such a nomination claiming the country can wait eleven months for a new vice president?
What if the sitting vice president dies or resigns in office? The new president would appoint a new vice president subject to congressional approval. Would the Republicans Senators refuse to vote on the replacement? This happened in 1973 when vice president Spiro Agnew resigned in disgrace after pleading no contest to a charge of income tax evasion. Then President Nixon nominated Gerald Ford to be his replacement and the Congress confirmed the appointment.
SCOTUS faces several critical issues in 2016 including public union dues, abortion, and Obamacare. In their entirety, these issues affect virtually every American. Moreover, the Republicans can grill the potential nominee on these issues and more, such as the contentious Citizens United v. Federal Elections Committee – the campaign financing decision – that is one of the most talked-about issues this election year. The Republican Senators can demonstrate their smarts and legal insights, and perhaps gain public support for their cause. Instead they seem to be headed in the same old obstructionist direction in order to demonstrate how they stood up to President Obama. For them it has become a pissing contest with the good of the country hanging in the balance.
Blog posted by Dr. Steven Mintz, aka Ethics Sage, on February 18, 2016. Professor Mintz is on the faculty of the Orfalea College of Business at Cal Poly San Luis Obispo. He also blogs at: www.workplaceethicsadvice.com.