Eight Justices Only!
Gilbert N. Kahn is a professor of Political Science at Kean University.
As Republicans caucus tonight in Nevada and contemplate whether anyone can still stop Donald Trump, across the country in Washington, the GOP Senators have made their decision. They have emphatically told Obama that the Republican controlled Senate will not consider any Supreme Court nominee that he will send to it. Senate Republican Majority Leader Mitch McConnell has decided that the Senate will not be advising or consenting on any proposed judicial nominee that the President will send them. His convoluted rationale is based on the reasoning that the next President who will be elected by the people—as opposed to this president who was not elected by the American people but perhaps by Obama’s people from Kenya—should nominate the replacement for Justice Scalia. The Senate should wait until after the November election when the people will have spoken. Why is the voice of the people who elected Obama being disenfranchised by a Senate leader who was elected only by the people of Kentucky?
The number of potential 4-4 votes on the Court or the number cases which will be reargued because McConnell’s strategy does not appear to concern him. Assuming the GOP does not change its mind, it probably will be 18 months–or the fall term of 2017– before a new Justice is in place. It might be worth considering whether McConnell would suggest that the Senate also should defer on a passing budget to permit the U.S. Government to function until a new President is elected.
The stance by the Majority Leader is not surprising. In a similar vein after the 2010 congressional elections, McConnell said that his job as Republican Leader for the next two years until the 2012 presidential election was to defeat Obama in November 2012. Legislating and performing his job as U.S. Senator thus was immaterial to the people of Kentucky who elected him.
Admittedly, the White House is stuck having to live with the fact that in 1992 the then Senate Judiciary Chairman, Joe Biden, had conjectured that if there were a Supreme Court vacancy—there being none at the time– he would recommend deferring consideration until after the election. Biden was merely speculating and not dealing with a real situation. How he might have acted is total conjecture. If he had to consider a real nominee, times were more congenial then, and he well might have move ahead with consideration of a nominee presented by then President George H.W. Bush.