Bench Memos

Sens. McConnell & Grassley Say Voters Should Decide How SCOTUS Vacancy Is Filled

In an op-ed published by the Washington Post on Thursday, Senate Majority Leader Mitch McConnell and Senate Judiciary Committee Chairman reiterate the view, expressed by Senator McConnell before, that the Senate should not fill Justice Antonin Scalia’s seat on the Supreme Court until after the election. They write:

Rarely does a Supreme Court vacancy occur in the final year of a presidential term, and the Senate has not confirmed a nominee to fill a vacancy arising in such circumstances for the better part of a century. So the American people have a particular opportunity now to make their voice heard in the selection of Scalia’s successor as they participate in the process to select their next president — as they decide who they trust to both lead the country and nominate the next Supreme Court justice. How often does someone from Ashland, Ky., or Zearing, Iowa, get to have such impact?

We don’t think the American people should be robbed of this unique opportunity. Democrats beg to differ. They’d rather the Senate simply push through yet another lifetime appointment by a president on his way out the door. No one disputes the president’s authority to nominate a successor to Scalia, but as inconvenient as it may be for this president, Article II, Section 2, of the Constitution grants the Senate the power to provide, or as the case may be, withhold its consent.

They go on to remind readers that this latter position – that the Senate has no constitutional duty to consider a President’s judicial nominees — was once shared by Senate Minority Leader Harry Reid. When a Republican was in the White House and making nominations, Reid said:

“The duties of the United States Senate are set forth in the Constitution of the United States. Nowhere in that document does it say the Senate has a duty to give presidential nominees a vote. It says appointments shall be made with the advice and consent of the Senate. That’s very different than saying every nominee receives a vote.”

As Majority Leader and Senate Judiciary Committee Chairman, Senators McConnell and Grassley have the ability to prevent consideration of a nominee.  For this reason, their op-ed would suggest that they have made up their minds about how to proceed.

Jonathan H. Adler — Mr. Adler is an NRO contributing editor and the inaugural Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. His latest book is Marijuana Federalism: Uncle Sam and Mary Jane.


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