The Nomination Debate

A week ago, the White House confirmed President Obama’s intentions to “fulfill his constitutional responsibility to nominate a successor to Justice Scalia.” The President echoed those words a day later, promising to provide the Senate with an “indisputably qualified” nominee. For their part, Senate Republicans have been unified in their refusal to so much as consider a replacement until after the election. Led by Majority Leader Mitch McConnell, the plan is to disregard Obama’s overtures and wait until the people make their wishes known this November.

The Democratic Party has replied by depicting Republicans as implacable obstructionists. Patrick Leahy, the Senate Judiciary Committee’s top ranking Democrat, went on CNN to blast his Republican colleagues with “dereliction of duty.” Democratic frontrunner Hillary Clinton reminded an audience in Colorado that “elections have consequences,” adding that “the U.S. Senate has a responsibility to vote.” On Wednesday, Senate Minority Leader Harry Reid launched a withering attack against Judiciary Committee chairman Chuck Grassley, calling his colleague “inept.”

But by vowing to block Obama’s nominee Senate Republicans are actually honoring the democratic impulse, not trying to extinguish it.

First, for Democrats to suggest adhering to 2012 out of respect for democratic norms is to conveniently ignore the 2014 midterm elections, which happen to be the most recent electoral contest we’ve had. The results that year amounted to an undeniable repudiation of President Obama’s policies. Not quite two years ago, the American people handed the keys to the Senate to the Republican Party, knowingly empowering Senate Republicans, among other things, to affirm or deny Supreme Court nominations should any be made by the President. In a sense, if Senate Republicans were to entertain President Obama’s choice on the grounds of cooperation (the opposite of obstruction), they would, in effect, repudiate the voters who elected them precisely because of their dissatisfaction with the Administration. Indeed, one reason why Donald Trump and the other anti-Establishment Republican candidates have swept the Party is that conservative voters feel DC Republicans have done precisely this over and over.

Second, consider the timing. What pays more respect to democracy: listening to what the people said more than three years ago or listening to what they will say mere months from now?

The expectation is not that the president will cede all of his upcoming decisions to his successor. But Supreme Court justices serve for life, meaning our next president will be powerless to overturn someone already confirmed to the bench. Since confirming a Supreme Court nominee involves an interplay between the president and congress, and since we have the opportunity to ask the people, in a few months’ time, which party they want to see in control of both the executive and the legislative branches, this is precisely the sort of decision that a respect for democracy should cause us to make this upcoming election about.

This is now a test of resolve. Will Republican leaders let conservatives down, or will they remain firm? Will they articulate their case clearly and forcefully to the American people, rooted as it is in a respect for the Constitution and for democratic choice?

There are indications President Obama will push a moderate, compromise nominee. Earlier this week there were reports that Brian Sandoval, the pro-choice Republican governor of Nevada, was being considered for the job—though Sandoval has since told the White House to take his name off the shortlist. If Obama ultimately decides on a candidate whose profile is similar to Sandoval’s, it should not change anything. For Senate leadership to embrace a moderate pick simply because it would be better than a far more liberal alternative is to nullify the principled commitment to democracy they are currently displaying by holding out. The Senate’s refusal to meet with Obama was never ultimately based on avoiding a liberal appointee, but rather on a thoroughgoing commitment to discerning the will of the people.

In his broadside against Grassley, Harry Reid also feigned incredulity over Senate leadership refusing to meet with whomever the president nominates: “They won’t even give the eventual nominee with the common courtesy of a meeting! Won’t even talk to the person!” Republicans should remain steadfast. It seems everyone in the country minus the Minority Leader recognizes that the Supreme Court is now a wholly political institution. To talk of a denial of “common courtesy” as though Republicans are letting their personal animus for Obama get in the way of harmless procedure is to naively suggest there is little political significance to Scalia’s replacement.

Berny Belvedere is a professor of philosophy and a writer based in Miami, Florida.