On any Supreme Court nomination, Republicans must do their job

The U.S. Supreme Court has received more attention from the mainstream media over the past four days than in the previous several months combined. The death of Associate Justice Antonin Scalia, the conservative beacon on the high court who served for three decades after being confirmed unanimously by the Senate in 1986 as a Reagan appointee, has thrusted the third branch of government into the national spotlight. It only took a few hours after Scalia’s passing for the inevitable question to arrive: Who will take his seat, and thereby determine the philosophical and judicial direction of the Supreme Court for the coming decade?

{mosads}Scalia’s death, like everything else in Washington, is pushing Republicans and Democrats into their respective corners. Senate Majority Leader Mitch McConnell (R-Ky.), exercising his duties as the top dog in the chamber, made it abundantly clear on the same night as Scalia’s passing that he will not allow a vote on a prospective replacement until the American people make their choice this November as to whom the next president of the United States will be. For someone who is a Senate principlist supposedly concerned about regular order, McConnell’s short statement was a shocker to those who expected that the rules would be followed. But for McConnell, the notion of President Obama being able to appoint, let alone have confirmed, yet another progressive justice on the high court with just 10 months left in his presidency was too much for him to stomach: “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.”

Senate Minority Leader Harry Reid (D-Nev.) and the rest of the Democratic caucus are having none of this. Voting down an Obama appointee to the court is one thing, but reflectively blocking the entire process from even starting is quite another. “If Republicans proceed,” Sen. Reid wrote in The Washington Post, “they will ensure that this Republican majority is remembered as the most nakedly partisan, obstructionist and irresponsible majority in history.”

So, who is right and who is wrong? The short answer: It’s a mixed bag.

Article I, Section Two of the Constitution invests in the office of the president the power — and indeed, the responsibility — to nominate appointees to the Supreme Court. Yet in that very same section, the Senate has the authority to accept or reject the president’s nominee under the “advise and consent” clause. Put simply: Both branches of government have a duty to work together to get a nominee onto the bench of the highest court in the land. If consensus isn’t built, particularly at a time of divided government in today’s hyper-partisan political environment, it’s likely that a overly liberal or conservative justice (depending on which party controls the Senate) will be voted down.

McConnell can’t do anything to stop the president from appointing a candidate to the Supreme Court. What he can do as the majority leader, however, is ensure that he has enough support among conservative Republicans to stop that nominee from being confirmed. All of that is perfectly within the rules and perfectly within the law.

What rubs many people the wrong way is that McConnell has chosen to block the entire nominating process from the beginning. Not only has he stated that no Obama appointee will be confirmed, but that no man or woman chosen by the president will even get a hearing by the Judiciary Committee. The chairman of the Judiciary Committee, Sen. Charles Grassley (R-Iowa), has recently indicated that he would be open to hearings depending the qualifications of Obama’s pick. Yet it will be difficult for a chairman to go ahead if his majority leader opposes even holding a hearing. Is this “advise and consent” under the Constitution, or political obstruction during an election year?

If McConnell is so sure that he has the support he needs to block an Obama nomination to the Supreme Court from proceeding, he shouldn’t be afraid to go through the regular order that he is so fond of touting when giving speeches on the Senate floor. It’s completely hypocritical to complain about Senate Democrats throwing a wrench into the appropriations and budget process when the majority leader himself is willing to do the same thing on a judicial nomination. But, yet again, Washington is full of hypocrisies.

Let the process play out as it was drafted by the founders of the Constitution. Go through the hearing process. Take a vote in committee. If the Judiciary Committee votes down the nomination — a result that is likely given the 10-8 Republican majority on the panel — so be it. End of story, end of controversy.

The American people elected officials to the Senate to actually perform a job, not sit on the sidelines and engage in political gamesmanship — even if 2016 happens to be a presidential election year. President Obama intends to do his job. The Republican majority in the Senate ought to do their job as well.

DePetris is a Middle East analyst for Wikistrat, Inc, a geopolitical risk consultancy, and an independent foreign policy consultant.