Should President Obama Nominate the Next Supreme Court Justice: An Investigation

It’s official: This Supreme Court vacancy has pushed the presidential campaign into overdrive. Not even two hours after Justice Antonin Scalia’s death was announced, Republican candidate (and the GOP’s first-place finisher in the Iowa caucus) Ted Cruz came out swinging:

And Cruz isn’t alone. His opponents in the Republicans’ presidential nominating contest agree with him: Rubio, Bush, and Trump have been misleading voters and want to obstruct any nominee the President will offer.

Let’s ask the experts.

First up, the founding fathers themselves:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States. -United States Constitution, Article II, Section 2

That seems pretty clear. There’s no “unless the next election is right around the corner” provision. In fact, at least fourteen Supreme Court justices have been confirmed in presidential election years.

It’s one thing for presidential candidates to play politics. But what about an actual, sitting president? Enter President Ronald Reagan, in the final year of his presidency:

“To make sure there is a full nine member Supreme Court to interpret the law, to protect the rights of all Americans, I urge the Senate to move quickly and decisively in confirming Judge Anthony Kennedy to the highest Court in the land.” -President Ronald Reagan, 1988

Reagan’s nominee, Supreme Court Justice Anthony Kennedy, was confirmed unanimously in the last year of Reagan’s term by a Democratic-led Senate.

Now let’s consult the seasoned, senior senators who have been through the judicial appointment process repeatedly. Here’s Chuck Grassley:

“The fact of the matter is that it has been standard practice over the last nearly 80 years that Supreme Court nominees are not nominated and confirmed during a presidential election year.” -Senate Judiciary Committee Chair Chuck Grassley (R-Iowa), 2016

Hmmm — that’s a very different tune than what he was singing eight years ago when Republican President George W. Bush asked a Democratic-controlled Senate to approve his judicial picks:

“The reality is that the Senate has never stopped confirming judicial nominees during the last few months of a president’s term.” -Senate Judiciary Committee Member Chuck Grassley (R-Iowa), 2008

Perhaps it’s no surprise that Senate Majority Leader Mitch McConnell agrees with Grassley:

He was even nice enough to put that last sentence in bold for you, so you can’t miss it.

To try to explain their obstruction, Mitch McConnell and Chuck Grassley point to something called the “Thurmond Rule,” a make-believe, unspoken understanding that a president should simply stop making judicial appointments at some point in his or her last term.

Here’s Mitch McConnell in 2008, talking about the Thurmond Rule:

Hmmmmmmm.

The truth is that Chuck Grassley, Mitch McConnell, and their fellow Republicans were fine with the idea of judicial appointments late in George W. Bush’s term. It’s only Barack Obama exercising his presidential responsibilities that they seem to have a problem with.

There are 337 days left in Barack Obama’s presidency, and it has never, in the history of the Supreme Court, taken more than 125 days for a nominee to get a vote on the Senate floor. In fact, in recent history it’s only taken about 67 days.

If the Republicans get their way, not only will they be engaging in an unprecedented level of obstruction, they’ll likely leave the Supreme Court without a full bench on some of the most important questions we face as a nation. Without a ninth justice, ties in the court could delay decisions on abortion rights, immigration, affirmative action, voting rights, and environmental protection. It would force the lawyers and advocates who have worked so hard to get their case to the Supreme Court to start over again.

So stand with 2008 Chuck Grassley, 2008 Mitch McConnell, 1988 Ronald Reagan, and Democrats across the country. Demand that President Obama’s Supreme Court nominee receives a fair hearing and a vote on the Senate floor.