Scalia was confirmed right before Election Day

Charlotte Clymer
Feb 14, 2016 · 3 min read
Reagan and Scalia in July, 1986 after he’s announced as nominee to Supreme Court

Following Supreme Court Justice Antonin Scalia’s unexpected death on Saturday, Senate Republicans moved quickly to shape the national conversation on the process for nominating and confirming his successor.

Senate Majority Leader Mitch McConnell demanded that the next president be the one to nominate a new justice rather than President Obama:

“The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.”

Nevermind that the American people had elected President Obama with a clear majority in 2012 for just this purpose.

Following suit in a televised debate on CBS later that night, the Republican candidates for the White House were unanimous in their insistence that a “lame duck” president should not have the power to fill a vacancy on the Supreme Court.

Ted Cruz claimed there are “80 years of precedent of not confirming justices in an election year”.

As Elizabeth Williamson points out, “It’s not clear what Mr. Cruz was talking about (and some Republican Senators were also making that claim). Justice Anthony Kennedy was nominated by President Ronald Reagan in 1987 after his two previous nominations of Robert Bork and Douglas Ginsburg collapsed. He was confirmed in 1988, during an election year, when Democrats controlled the Senate.”

Indeed, Justice Kennedy’s confirmation included “yea” votes from Mitch McConnell and Chuck Grassley of Iowa, the Senate Judiciary Committee Chairman, who will oversee the incoming confirmation process.

Perhaps forgetful of his own voting record, Sen. Grassley said on Saturday:

“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.”

Of course, as steadfast hypocrisy goes, this only gets better.

The late Justice Antonin Scalia was nominated by President Reagan in July of 1986 and confirmed on September 17th, just 48 days before Election Day, when Democrats regained control of the Senate.

There was no bickering over “unfairness” of the process. There was no demand that President Reagan, a lame duck Commander-in-Chief facing the prospect of losing the Senate, wait until the next session of Congress to put forth his nominee.

There was the Constitutional mandate of the President and the duty of the Congress to confirm or reject the President’s nominee.

Senators Mitch McConnell and Chuck Grassley, then the junior and much more youthful members of that legislative body, had no such qualms with the process. Both voted for confirmation of Justice Scalia.

And in the years since, neither senator has expressed regret over that decision.

This is the modus operandi of Congressional Republicans. When things go their way, the system is working just fine. When the rules are inconvenient, the Constitution suddenly becomes a living document open to interpretation.

Perhaps Sen. Elizabeth Warren best summed it up:

Charlotte Clymer

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