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McConnell and Scalia
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McConnell and Scalia

Gilbert N. Kahn is a professor of Political Science at Kean University.

The Republican response to the death of Justice Antonin Scalia on Saturday demonstrated precisely how far the American political system has gone from the very spirit of the Constitution that Scalia himself sought his entire life to uphold. Republican Senate Majority Leader Mitch McConnell in his first remarks following the death of Scalia stated that the Senate will not consider any Court nominee that President Obama might submit to it for the remainder of his term in office.

In language that was clearly political McConnell stated that: “The American people‎ should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president….” Hoping that in November a Republican will be elected president who then will have the prerogative in 2017 to nominate a replacement for Scalia, Senator McConnell was once again not interested in governing but obstructing and blocking Obama’s ability to act. It would then be “his” American people in 2017!

It was not the bottom line that in fact that legislative calendar would probably make it very difficult to have a new Justice confirmed; that there very few historical examples of Presidents having their nominations confirmed by the Senate in the last ten months in office; and that any nomination probably in the natural course of events would be blocked, carried over, or defeated by an opposition controlled Senate. It was rather the approach that McConnell took; as if any nomination at any time would also not reflect the voice of the American people. McConnell clearly was not out to insure the American people that the Senate would be sure to do its duty to “advise and consent” on the President’s nomination. For McConnell, “advise and consent” was translated as the Senate doing its job by not considering the President’s nominee.

The resolution and implications for cases currently before the Court or due to be argued now by the Court were not McConnell’s concern. Similarly, he was not considering that the possibility that the Democrats could regain control of the Senate next year.  His only interest was to insure this President would not have a nominee confirmed. He would take a shot as to what would happen next year.

McConnell’s attitude held one ramification and one footnote. If indeed there is no Senate action this year it is likely that the Supreme Court will operate probably for at least 18 months without its traditional quorum of nine.  Second, McConnell’s attitude was also supported by the Republican presidential aspirants as expressed in their Saturday night debate. All the candidates echoed McConnell’s view, as expressed best by Trump who argued that the Senate should “…delay, delay, delay….”

The problem with this approach by McConnell and the candidates was once again advocating that the Senate renege on its Constitutional obligation to govern. As McConnell said in November 2010 following the mid-term elections—in a harbinger of what he frequently during the Obama years said again on Saturday–his goal as Republican leader in the Senate was to be sufficiently obstructive and make matters so difficult that Obama would be a one term President. McConnell’s goal, therefore was not to act as an opposition leader and influence the legislation and aid in the governing of the nation, but rather to obstruct the President’s initiatives; an approach that Scalia no doubt would have argued was neither the law nor the intent of the Constitution for the appropriate role for Congress in governing. 

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