In the days since Justice Scalia’s death, both the Right and the Left have trotted out precedents to support their positions on whether the Senate should confirm his replacement before November’s presidential election. Pundits have debated whether Justice Kennedy’s nomination supports the liberal argument because he was confirmed in an election year, or whether it supports the conservative position because he was actually nominated in the previous year. The discussion has included nominations going back over a century, names that most Americans had never heard prior to Saturday night.
But historical precedent should not determine the Senate’s actions in this instance. The legal landscape changed in June 2015, when Justice Kennedy wrote the Obergefell decision, overturned Washington v. Glucksberg, and called on courts to substitute their own “reasoned judgment” for the judgments embodied in the Constitution. In light of that opinion, whatever comity and cooperation may have previously been appropriate regarding Supreme Court nominations no longer applies.
The view of judicial power laid out in Obergefell would transform the nature of the judiciary and the American Republic. Justice Kennedy wrote that “the identification and protection of fundamental rights is an enduring part of the judicial duty” and that judges should “exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect.”
Conservatives have long expressed antipathy toward litmus tests for judicial nominees. But there is one litmus test that is appropriate: Republican senators should block any nominee unless they are convinced that the nominee will reject Justice Kennedy’s invitation to use “reasoned judgment” — rather than neutral constitutional principles — to arrive at their decisions regarding constitutional rights. It is incumbent on nominees to persuade the Senate that they reject that standard. If the Senate is not entirely convinced that a nominee sees himself as a judge rather than a philosopher king, the nominee isn’t owed any further consideration. The Supreme Court is a judicial body, not an oligarchic super legislature, and anyone who thinks otherwise is not fit to serve on the bench.
— Howard Slugh in an attorney practicing in Washington, D.C.