Article II of the United States Constitution states that the President:
…shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The President nominates Supreme Court justices and the Senate advises and consents. That’s how it works.
When Antonin Scalia died in February 2016, Barack Obama did his constitutional duty and nominated Merrick Garland to replace Scalia. The Senate, under the leadership of Mitch McConnell, refused to give Garland a hearing. He said that it was inappropriate for Obama to nominate a new justice in an election year. The next Supreme Court nomination, McConnell argued, should thus be left up to the new President. Trump won the November election and appointed Neil Gorsuch.
We are now 43 days away from an election and the recent death of justice Ruth Bader Ginsburg has reignited the same debate about the right of a president to appoint a new justice during an election year. The Republicans in all their hypocrisy are now demanding that Trump should appoint Ginsburg’s successor. Here is Lindsey Graham, the head of the Senate Judiciary Committee, 2016:
Graham is now suggesting that Trump should get to pick the next justice.
Of course this should not surprise us. Politics is not about integrity, ethics, or standing by one’s word. It is about power. And let’s not pretend that the Democrats wouldn’t do the same thing if they were in the GOP’s shoes right now. Plague on all their houses!
Two wrongs do not make a right. McConnell was wrong in 2016. Merrick Garland should have received a hearing and an up or down vote. In 2020, Trump’s appointee should receive a hearing and get an up or down vote. If the Senators believe that it is in the best interest of the country to let the next president choose a justice, then they can vote accordingly.
In March 2016, I wrote a Fox News piece on the whole Garland mess while I was in residence at George Washington’s Mount Vernon. Read it here.