It was only a few hours after news surfaced of Supreme Court Justice Antonin Scalia’s death that Republicans in the Senate had vowed to reject any replacement nominated by President Barack Obama. “The American people should have a voice in the selection of their next Supreme Court Justice,” said Senate Majority Leader Mitch McConnell in a statement. “Therefore, this vacancy should not be filled until we have a new President.”
McConnell’s hard-line position on the Supreme Court vacancy was quickly endorsed by a wide array of Republican officials, including essentially all of the GOP presidential candidates and even senators who face tough reelection prospects in purple states.
The Senate has the duty to “advise and consent” the president on Supreme Court nominations. Sen. Ted Cruz articulated the Republicans’ position by saying it will be “advising” Obama not to nominate anyone. Democrats have called this blanket refusal a reckless abandonment of the Senate’s constitutional responsibility. Sen. Elizabeth Warren went as far as saying the position risked threatening “our democracy itself.”
But while some liberals have cast the GOP’s stance as pure political intransigence, conservatives have articulated a wide range of explanations for not considering any Supreme Court nominee chosen by Obama. Here are four of the key reasons conservatives say the Republican Senate should block any Obama nominee.
1. A Democratic Senate would do the same thing to a Republican president.
Conservatives have argued that a Democratic Senate would not agree to confirm a Republican president’s Supreme Court nominee in an election year, and thus they consider the left’s attacks hypocritical.
“Does any sentient human being believe that if the Democrats had the Senate majority in the final year of a conservative president’s second term – and Justice Ginsburg’s seat came open – they would approve any nominee from that president?” writes David French in National Review. “Democrats would undoubtedly stand firm against a conservative president.”
There are two examples in particular that many conservatives have pointed to for what they see as evidence of how Democrats would act if given the opportunity to block a Republican president’s nominee. One is the Democratic Senate’s successful effort in 1987 to derail President Ronald Reagan’s appointment of Judge Robert Bork, a conservative jurist with controversial pro-life positions.
Another example cited by conservatives comes from 2007, when prominent Democratic Sen. Chuck Schumer said the Senate should reject any further nominees from President George Bush “except in extraordinary circumstances.” Much like Republicans today, Schumer’s sentiment was clearly based on a fear that another Bush appointment would radically shift the overall makeup of the Court’s ideology,” the Daily Caller’s Blake Neff writes.
2. Obama’s nominee could give liberals big victories on critical policy issues.
Another key reason conservatives want the Senate to quash any Obama nominee has less to do with procedure and more to do with the policy implications for the country. The Supreme Court will take up critical cases on abortion, birth control, voting rights, and a host of other issues in this term alone. Allowing the Democrats to have their choice nominee would almost guarantee the left clean victories on what many regard as among the most important fights in American politics. One can disagree with conservatives’ positions on these issues. But there’s no disputing that when it comes to the balance of the Court, the stakes are incredibly high.
3. Conservatives think Democrats and President Obama have themselves violated constitutional norms.
In 2013, the Senate, led by Sen. Harry Reid, used the “nuclear” option to weaken the filibuster, showing a willingness to change the rules and norms of Congress to accomplish a preferred goal. “Democrats pioneered the art, first, of blocking judicial appointees, and, second, of ramming judicial appointees down the minority’s throat at the expense of the filibuster,” writes Mario Loyola in a National Review post.
In September of 2015, 42 Senate Democrats voted to filibuster the approval process for the Iran nuclear deal. Even though all of them had voted for the bill that created that upside down treaty ratification process . . . they denied the Senate that privilege. They cared nothing for the Constitutional niceties then.
4. The point of divided government is for the branches to fight for power.
In her Facebook post criticizing the Republicans’ position, Warren argued that President Obama was democratically elected and thus should have the ability to nominate a Supreme Court justice. But many conservative writers have pointed out that the Senate is also made up of democratically elected officials and that the divided branches of government were intended to fight among themselves.
John Yoo, a Berkeley law professor and President George W. Bush’s controversial deputy assistant attorney general, wrote in National Review, “The Constitution gives the Senate the authority to offer its ‘advice and consent’ on Supreme Court justice nominees. According to the conservatives opposed to Obama, it’s up to the Senate to determine exactly what that means.
“The Senate can structure its own rules to govern the advice-and-consent process,” says Adam J. White in the Weekly Standard. “Nowhere does the Constitution say that the Senate is required to act on the president’s nominations.”
About the Author
Jeff Stein is a columnist and writer for Newsweek. He has served as a columnist for Congressional Quarterly’s website, CQ Politics. He specializes in U.S. intelligence, military and foreign policy issues. Stein has authored three books and made numerous television and radio appearances.