The death of Justice Antonin Scalia creates a void in the Supreme Court’s jurisprudential and intellectual firepower that may not be filled for a generation. I would be sublimely insincere if I expressed great sadness at Justice Scalia’s passing, since I agreed with almost none of his decisions and felt the prick of his pen in the one case I argued at the Court, Fex v. Michigan. However, I salute his amazing breadth of knowledge, his consummate forensic ability and his brilliant wit. Despite the difficulty in finding a replacement of Justice Scalia’s caliber, President Obama would be shirking his duty if he failed to nominate a candidate to replace him promptly.
Sen. Mitch McConnell, the Senate Majority Leader, and other Republicans are demanding that the President decline to make an appointment. They contend he should leave that responsibility to the next occupant of the White House. It is astounding that United States senators, who could be presumed to be of above-average intelligence, should make such a silly proposal.
First of all, it is highly unlikely that a president who takes office in January would select a nominee before March. After that, the confirmation process would most likely take 90 days or more. It is the height of irresponsibility to demand that a seat on the nation’s highest court remain empty for upwards of 15 months, despite the many important cases that must be decided in the interim. The Court’s term ends in June. Delaying the appointment of a replacement justice until April or May would have the effect of leaving the seat open until the beginning of the next term in October 2017.
Secondly, the quidnuncs milling around yelling, “We must wait,” ignore the likelihood that the President will nominate a consensus candidate. They fear the appointment of a <shudder> Pro-Choice, Affirmative Action, Illegal-Immigrant-Loving, Anti-Law-and-Order, Let-Everybody-Vote Liberal. Do they really think that the President would try to seat a left-wing wingnut? If so, it is because they would expect a Republican president to nominate a Federalist Society ideologue who would strike down the Magna Carta if he could.
Unless President Obama nominates a candidate that a majority of senators will support, the nomination will go nowhere. If the nominee is acceptable to a majority of senators, why is there a problem?
Third, the Supreme Court now has one empty seat. Justice Ginsburg is 82 and has health problems. Justice Kennedy is now 79, the same age as Justice Scalia. Justice Breyer is 77. It is not unthinkable that there could be another vacancy on the Court between now and January 2017.
Finally, filling a vacancy on the Supreme Court is one of the most important duties and privileges of a President. To expect the President to pass on this obligation because he is in the last year of his administration would be like expecting Tom Brady to refuse to pass in the fourth quarter of a game. The President would be abdicating his responsibility, as would the Senate if it unreasonably refused to consider the President’s nominee.
John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
©2016 John B. Payne, Attorney