Just two hours after Supreme Court Justice Antonin Scalia's death was announced, Senate Majority Leader Mitch McConnell issued a call to block any attempt by President Obama to choose Scalia's replacement. In knee-jerk fashion, New Hampshire Republican Sen. Kelly Ayotte became one of the first senators to echo McConnell.
Leaving Scalia's seat empty for at least a year effectively nullifies the power of one of the three co-equal branches of government. Since Obama became president, the high court has issued 53 5-4 decisions, most with swing justice Anthony Kennedy siding with the court's four conservative justices. Many of those decisions are among the most important made by the court. At stake were women's equality in the workplace, limits on abortion, rulings affecting the separation of church and state, gay marriage, civil rights, affirmative action and campaign spending.
When the high court issues a tie vote, the decision of the federal appeals court involved remains in force. The issue remains undecided. Ayotte and her fellow Republicans are willing to sacrifice judicial progress and the resolution of problems affecting millions of people, preferring partisanship instead.
Ayotte's hastily issued statement, echoing what is now her party's line, says no decision should be made until the people speak by voting in November. But the people had their say when they re-elected Obama and when, in this case, they voted for Ayotte. She is not expressing the will of her constituents but the will of her party.
Republicans, notably presidential contenders Ted Cruz and Marco Rubio, have been spouting all sorts of nonsense, fiction and outright lies about precedent. There is no tradition of presidents not making a Supreme Court nomination in the last year of their administration. Ronald Reagan did it in 1988, when Anthony Kennedy ultimately replaced Justice Lewis Powell, who had retired. Other than Kennedy, the issue didn't come up for good reason. No other justice has died or retired in the last year of a presidency in more than a century.
Failure to act on a president's nomination is, as Democrats argue, a dereliction of duty and a blow against democracy, which requires three co-equal branches of government. Voters should consider such a refusal to perform their sworn constitutional responsibility to advise and consent, not merely obstruct, a disqualification for future Senate office.
In some ways, the Republican obstruction is almost certain to backfire. No matter what their political leanings, many voters, we believe, agree that obstruction is wrong. Second, nine of the 13 federal court districts have a majority of judges nominated by Democrats. Only in four, in the Midwest and South, do Republican nominees dominate. The stall means many lower court decisions conservatives loathe will remain in force.
There are many qualified Supreme Court nominees who are considered both brilliant but non-ideological and politically impartial. At least two, Sri Srinivasan of the D.C. Court of Appeals and Jacqueline Nguyen of the 9th District, were relatively recently confirmed 97-0. Either choice would diversify the court ethnically and, since it was made up of six Catholics and three Jews, religiously. Diversifying the court, Scalia said last summer, was one of his hopes.
Jumping on the anti-nomination bandwagon calls into question the sincerity of Ayotte's recent breaks with her party over immigration and Obama's attempt to address climate change by ordering a cap on carbon emissions. Her high court position is wrong, and she should quickly reverse it.