Supreme Court Experts And Reporters: Obstructionists Should Read The Constitution

“It's Another Example Of How Rotten Our Politics Are”


Legal scholars and reporters who have covered the Supreme Court are criticizing conservatives' planned obstruction of President Obama's eventual nominee to replace Supreme Court Justice Antonin Scalia.

Within hours of Scalia's death Saturday, right-wing media figures started pushing the idea that Republican senators should block any potential replacement nominated by Obama and leave the vacancy unfilled until the next president takes office in 2017.

Senate Majority Leader Mitch McConnell released a statement shortly after Scalia's death arguing that Scalia's seat “should not be filled until we have a new president.” A number of Republican politicians -- including GOP candidates at Saturday night's debate -- have since suggested that Obama should not even put forward a nominee.

Several legal scholars and Supreme Court beat reporters contend the president has a duty to appoint a replacement for Scalia, adding that the U.S. Senate is abdicating its constitutional responsibility if it does not hold hearings to approve or reject such nominees.

“It would be highly unusual for any president NOT to appoint someone,” Linda Greenhouse, a former New York Times Supreme Court reporter from 1978 to 2008 and a 1998 Pulitzer Prize winner, said via email. “It's up to the Republicans to explain why they would refuse even to consider a qualified nominee.”

Stephen Wermiel, a professor of constitutional law at American University Washington College of Law is an expert in Supreme Court jurisprudence, agreed: “Obama has a right and a duty to make an appointment. It is not desirable by any measure to have the Supreme Court go an entire year with only eight justices instead of nine and have to resolve things by 4-4 ties and by other methods. The Constitution says the president shall appoint, it doesn't say only when it's politically convenient.”

Tony Mauro, a National Law Journal reporter who has covered The Supreme Court for 36 years, called it “one of a president's most important duties.”

“It's in the Constitution to nominate, it doesn't mean the Senate has to confirm,” he said. “I've been surprised that people are suggesting that he shouldn't even nominate anyone, that seems a little over the top. Nominating is one of the most important things that a president does. There is a vacancy on the court, so it is his duty.”

Garrett Epps, a professor at the University of Baltimore School of Law and Supreme Court correspondent for The Atlantic, agreed.

“It would be a little bit of a dereliction of duty ... and politically it would be silly,” he said about a move not to nominate a replacement. “It's pure politics. One of the consequences for the court of a prolonged vacancy is that the court can't make a decision unless there is a majority vote. It's kind of a dangerous situation, there are things that need to be decided.”

Nadine Strossen, a professor of law at New York Law School and former president of the American Civil Liberties Union said “this is not ambiguous” in the Constitution.

“The law is very straightforward,” she said. “You may know that the relevant provisions in Article 2 say, 'shall nominate and by and with the advice and consent of the Senate.' What's interesting is that it is the verb 'shall nominate,' not 'may nominate.' it is actually a duty of the president.”

Lucas A. Powe, a University of Texas Law School professor and a one-time clerk for former Supreme Court Justice William O. Douglas, called such an idea “absurd.”

“Functionally, what that will mean is, assuming we do wait until January or February next year without a justice, we are going to go an entire year without a full court,” he said. “That means a lot of important cases are going to be put off until 2018.”

He is among several experts who said the Senate has a right to reject a nominee, but not ignore it and refuse to vote: “It's another example of how rotten our politics are.”