Senate Judiciary Committee

Filling a Supreme Court Vacancy and Senate Obligations

Sen. Mitch McConnell and every Republican presidential candidate to the contrary notwithstanding, there is no legitimate reason to delay appointment of a successor to Justice Antonin Scalia. The U.S. Constitution provides for the president to nominate and, by and with the advice and consent of the U.S. Senate, to appoint justices to the U.S. Supreme Court. There is no constitutional provision for delay. Like it or not, Barack Obama is the president and has the constitutional duty to make the nomination, which the Senate has the constitutional duty to give due and timely consideration.

Second, while it is indeed for the president to nominate someone to fill the vacancy on the Court, it is for the Senate to consent to the appointment. There is no constitutional duty of the Senate to approve any “qualified” nominee. If members of the Senate want to replace Justice Scalia with someone with similar views, that is their prerogative; if they would prefer a justice with diametrically opposed views, that too is their prerogative.

Members of the Senate Judiciary Committee, whose task it will be to vet the nominee, should ask hard questions and insist on honest answers. No nominee should be approved who refuses to answer questions about Supreme Court precedent, the validity of Obamacare, the correctness of Citizens United, or any other politically charged topics.

There are deep ideological disagreements about how the U.S. Constitution is best understood, and senators (and the American public) have a right to know who they are getting on the Court. Nominees should not be permitted to dodge such hard questions on the basis that those questions may come before the Court; no-one is requiring a nominee to make any commitments, just to explain their current thinking.

Third, with all due respect to his intellect and wit, the last person we need on the Court is another Justice Scalia. He was an avowed originalist, who thought the judicial task was to determine what a provision of the Constitution meant when adopted, rather than what it means today.

Not long ago, for example, he opined that the Equal Protection Clause of the 14th Amendment, adopted after the Civil War, protects individuals only against discrimination on the basis of race, and has no application to sex discrimination. The framers of the 14th Amendment would no doubt have agreed; their conception of equality did not include women.

But the concept of equality, embodied in the text of the Equal Protection Clause, is more generous than their limited conception of it, as we now understand. There is no reason for us to be governed by the lights of those less enlightened. Let us hope that Justice Scalia’s successor understands that.

Patrick Wiseman, professor of law, teaches constitutional law and related courses, all of which are about the U.S. Supreme Court. Wiseman, a native of the United Kingdom, earned a B.A. at the University of Kent at Canterbury. He also has a J.D. from Columbia University School of Law and a Ph.D. in philosophy from the University of Colorado. After law school, he clerked for Judge Frank J. Battisti of the Northern District of Ohio. He has been a member of the college faculty since 1984.

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