The unexpected death of Supreme Court Justice Antonin Scalia almost immediately set off a partisan squabble. Within hours of his death, Senate Republican leader Mitch McConnell of Kentucky said filling the high court vacancy should wait until a new president takes office in 2017. President Barack Obama said he would nominate a new justice, and Senate Democratic leader Harry Reid of Nevada demanded the GOP-run Senate pledge to confirm a new nominee before Obama leaves office.
Before all of this political hyperventilating hits a fever pitch, it might be worth asking: What would Justice Scalia say?
Scalia championed "originalism," the idea that those who wrote and ratified the U.S. Constitution meant just what they said. "It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted," he once told an NPR interviewer.
Originalism is a sprawling set of legal theories with all kinds of ramifications that should be considered carefully. But one need not embrace the theory to understand the Constitution's succinct and straightforward language about filling Supreme Court vacancies. The president, it says, "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States."
That instruction — Article II, Section 2 — doesn't say anything about pausing the process during an election year.
Scotusblog, a website devoted to covering the Supreme Court, looked back to 1900 and found, "In that period, there were several nominations and confirmations of justices during presidential election years."
Obviously, filling this vacancy will hold great importance for the future both of the court and of American jurisprudence. Scalia was a staunch conservative voice on a court where a minority of cases on highly divisive issues tended to be decided by 5-4 splits.
The president and his Democratic supporters face a daunting numerical obstacle: It takes 60 votes to confirm a Supreme Court nominee, and there are only 46 Democratic senators. Approval of an Obama nominee would require support from 14 Republicans. That's a difficult threshold for the president to reach, especially given the political heat this issue already is generating.
That heat, by the way, is the product of long-simmering opportunism by both parties in Washington. Republican senators under a Democratic president (Obama) sound like Democratic senators under a Republican president (George W. Bush). Just as Senate Republicans are saying an Obama nomination should be off-limits since it's late in his presidency, so Sen. Chuck Schumer, D-N.Y., offered that same argument late in Bush's second term.
"We should reverse the presumption of confirmation," Schumer said in 2007. "The Supreme Court is dangerously out of balance. We cannot afford to see Justice Stevens replaced by another Roberts, or Justice Ginsburg by another Alito."
One positive from this situation is that the importance of the Supreme Court should receive greater attention in both the presidential and U.S. Senate elections this year.
Candidates should be expected to speak knowledgeably about how they see the role of the court and the qualities they would look for in their nominees.
The same goes for the current members of the Senate once the president picks his nominee.
While it might be unusual in an election year, a nomination by the president would be entirely appropriate under the Constitution. It's also entirely appropriate for the Senate to debate, vote on and perhaps reject the appointment if that's the majority's will.