Perhaps the President Should Defer a Supreme Court Nomination

Senate Republicans

The Republican leadership in the U.S. Senate, including Sen. Mitch McConnell, has indicated an unwillingness to consider any Supreme Court nominee put forward by President Obama. Photograph: Associated Press

The Republican leadership in the U.S. Senate has indicated an unwillingness to consider any Supreme Court nominee put forward by President Obama. In response, the president has said that he will exercise his constitutional duty to make such a nomination.

He certainly has that prerogative. The Constitution quite clearly states that the president shall nominate and, by and with the advice and consent of the Senate, appoint judges of the Supreme Court. The president has said that “shall” means “shall” and so imposes upon him a duty to do so. But it is worth noting that there is no express constitutional time limit on the nomination.

The Senate Republican leadership has apparently advised the president not to send any nominee forward, as that nominee will get no consideration. They suggest that the next election should decide the next justice, nomination of whom should be left to the next president. While that does not seem a particularly good faith exercise of the Senate’s advice-and-consent role, it is clearly within the raw power of the Senate to take that recalcitrant position, even though, all the arguments to the contrary, there is no “rule” or “tradition” to support it.

There are some signs of weakening of Republican resolve, a couple of senators up for reelection in “purple” states fearing that the obstructionism might work to their disadvantage in the general election. So perhaps an Obama nominee will get a hearing after all.

But to have a nominee confirmed by a majority Republican Senate, the president will have to nominate someone probably not enthusiastically supported by his core constituency. Perhaps now is the time for a true progressive to join the Court, someone who understands that the judicial task, in constitutional cases, is to do one’s best to figure out what the Constitution means, in today’s rapidly changing society, not what it meant in the late 18th century, someone, in other words, more like Justice William J. Brennan Jr. than Justice Antonin Scalia. Such a nominee is unlikely to survive the confirmation process in the current Senate.

But, as the recalcitrant Republicans like to remind us, this is an election year. Indeed it is, and it seems likely that the next president will be a Democrat and at least possible that the next Senate will be controlled by the Democrats. After Jan. 20, that Democratic president will have little trouble getting that progressive nominee through that Democratic Senate. So perhaps President Obama should just sit back and see what happens. After all, as several commentators on the right have noted, the world won’t come to an end if the Court is understaffed for several months.

Patrick Wiseman, professor of law, teaches constitutional law and related courses, all of which are about the U.S. Supreme Court. He is following the Senate’s obligations in the nomination process.

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