The death of Supreme Court Justice Antonin Scalia Saturday had become a full-fledged political issue by the end of the fiery Republican presidential debate that evening. It's a hazardous issue for the GOP.
President Obama appropriately took the high road Saturday, paying kind tribute to a right-wing justice whose precedent-be-damned decisions were clearly not welcomed by the president. In contrast, Senate Majority Leader Mitch McConnell, who said his main goal in the president's first term was to make sure the president didn't win a second term (a disappointing failure for Mr. McConnell), declared that Mr. Obama should not get to choose Justice Scalia's replacement. That evening, the six Republican presidential candidates all agreed, even though they did not agree on much else other than that half of their number were liars.
Otherwise disagreeable Republicans agreed that because no "lame duck" president had appointed a Supreme Court justice in modern political history, President Obama shouldn't get to appoint one in his eighth year. This, of course, is an utterly arbitrary argument that Republican hypocrites would not be making if John McCain was wrapping up his second term, and it is not even accurate.
In 1987, Justice Lewis Powell stepped down, giving President Ronald Reagan, who took office in 1980, an opportunity to appoint his replacement. He nominated Robert Bork, an intensely ideological justice on record as saying that judicial precedent should not impact a judge's decision. While on the Circuit Court, he had come out against the concept of "one man, one vote" and declared that homosexuals had no legal right against discrimination.
Mr. Bork was thoroughly unqualified for the Supreme Court and was rejected by the U.S. Senate. President Reagan then nominated Douglas Ginsburg, who withdrew after it was revealed that he had smoked marijuana while a student and professor at Harvard — which seems quaint if not preposterous today. Anthony Kennedy was the president's next choice, in late 1987, and in February of 1998 — a presidential election year ending President Reagan's second term — Mr. Kennedy was confirmed by a Democratic-controlled Senate. He still serves today.
A better analogy to what we are likely to see this election year came in 1968, another presidential election year, when President Lyndon Johnson's attempt to promote Justice Abe Fortas to chief justice was filibustered by Senate Republicans. They stalled the appointment until 1969 when Republican Richard Nixon was sworn in as president. Mr. Nixon unsuccessfully tried to have Justice Fortas impeached.
President Obama has made it clear that, Republican games-playing aside, he will nominate a candidate to replace Justice Scalia, as required by the U.S. Constitution. The moderate Democrat is likely to nominate a moderate candidate, inviting Republicans to refuse to even conduct hearings on a candidate nominated by an African-American president they have refused to work with for nearly eight years. The GOP is hoping a Republican president will choose a far-right extremist in 2017.
Reportedly on President Obama's short list of candidates is Sri Srinivasan, a judge on the D.C. Circuit approved by a 97-0 vote in 2013 by the U.S. Senate. Paul Watford, an African-American justice approved by the U.S. Senate in 2012 for the Ninth Circuit, is another possibility. A third is Merrick Garland, chief justice of the U.S. Court of Appeals for the DC circuit, who is regarded as a candidate with appeal to both parties.
If any of these three candidates, or any other legitimate candidate, is denied hearings or accorded a perfunctory rejection, Republicans will be exposed as playing partisan politics with the Supreme Court. That is nothing new, however, but playing that kind of game with the nation's highest court in an election year may have serious consequences for the party in November.