Neither History Nor the Constitution Compels the U.S. Senate to Confirm Obama’s Scalia Replacement

Written by Casey Mattox

Touchdowns were worth 4 points, field goals were worth 5, the forward pass was illegal, and these guys were the terrors of college football.

That was the setting in 1888, the last time an opposition party controlled Senate confirmed a Supreme Court nominee to a seat vacated during an election year. President Garfield’s nominee, Melville Fuller, (coincidentally, a Harvard man who would not have liked the picture above) gained the support of a barely Republican Senate.

The point? These are unusual times. Justice Scalia’s sudden death places the Court – and the nation at a crossroads, one across which it has rarely traveled. President Obama has not yet nominated anyone to fill this vacant seat, but Democrats are already demanding that the Senate hold hearings and votes on the nominee as if this vacancy is like any other. It is not.

As this infographic shows, election year vacancies are rare – and confirmation of a replacement during an election year is rarer still. And for good reason. While never intended this way, the Supreme Court has taken an increasing role in the everyday lives of Americans and our ability to govern ourselves through our elected leaders. And President Obama’s demonstrated lack of respect for the rule of law and our democratic process has led many Americans to distrust his ability or willingness to choose a nominee for this lifetime appointment that will faithfully apply the Constitution. The American people deserve a voice in the future of the Court and the country, and this election season will provide that opportunity.

The Senate is one-half of a legislative branch that is co-equal with the President – and indeed the first branch of government created by Article I of the Constitution. Article II, Section 2 of the Constitution authorizes the President to nominate Supreme Court Justices, but those nominees can only be appointed (take office) “with the advice and consent of the Senate.” The Constitution neither requires the Senate to confirm the President’s choice nor to hold hearings (only part of the process for the last century) or any vote. Indeed, Presidents have often been denied their choice for the Court – sometimes without any hearings or votes.

There is simply no historical or constitutional basis for demanding that the Senate act on the President’s nominee. The seat will be filled after Americans have had an opportunity to have this very important and overdue national conversation about the role of the Court this election season. Let’s settle this on the field.