Within hours of Justice Antonin Scalia’s death, the Republican Senate–and all six of the remaining GOP presidential candidates–had turned the shocking event into a partisan campaign issue. Not even a respectful mourning respite from politics as usual. Self-serving obstructionism was the gut reaction.
To paraphrase Boston attorney Joseph Welch’s stinging, historic rebuke to Sen. Joseph McCarthy in 1954: “Senators: Have you no sense of decency?”
And, yes, it’s still a rhetorical question. The party of no, the one that wanted to shut down the government, has no quarrel with putting the Supreme Court in jeopardy of judicial gridlock for the better part of a year. Which means immigration, abortion, affirmative action and public-employee union cases, among others, could stay in legal limbo by allowing lower court rulings to stand.
You’d think this was without precedent. But current Justice Anthony Kennedy was confirmed by the Senate in February of 1988 after the retirement of Justice Lewis Powell. Kennedy had been nominated by lame duck President Ronald Reagan. It was Reagan’s duty. He did it.
It was also part of Reagan’s re-election mandate, if you will. One that should also apply in 2016, President Obama’s final year.
Among those voting 97-0 to confirm Kennedy in ’88: Current Senate Majority Leader Mitch McConnell and Sen. Chuck Grassley, R-Iowa, now the chairman of the judiciary committee. Both have been outspoken that the vacancy should only be filled by a new president.
Republican icon Reagan underscored his take on final-year nominations with his choice of Kennedy. “Every day that passes with a Supreme Court below full strength,” said Reagan, “impairs the people’s business in that crucially important body.”
If the delay game plays out, however, would that political karma becomes a player. That would mean a resultant Democratic president and a Democratic Senate that would be receptive to a less-moderate, left-of-center nominee by President Sanders.