Using Obama’s own words to determine who should appoint a new Justice
Bridget L. Fay | February 16, 2016
Since the news of the passing of Justice Antonin Scalia, legal and political commentators have discussed the possibility of an Obama recess appointment to the Court; the infrequency of election-year nominations to the Court (the last election-year nomination was in 1932, before Justice Scalia was born); the 1968 filibuster of Associate Justice Abe Fortas’ nomination as Chief Justice; and various arguments for and against a vote on a nominee this year.
Those on the Left who would like to see an Obama nominee replace Justice Scalia point out that the people have spoken: they elected Obama in 2012, knowing that he could appoint more Justices to the Court. Conservatives may reply that the people also spoke in 2014, when they gave Republicans a solid majority control of the Senate.
The most relevant precedent for rejecting an Obama nominee, however, comes from an individual that liberals and progressives greatly admire as one of their own, and whose constitutional law credentials they deem impeccable: Barack Obama.
During George W. Bush’s second term, William Rehnquist passed away and Sandra Day O’Connor retired. (Both were appointed to the bench by Ronald Reagan, so replacement by Bush appointees would not change the ideological composition of the Court.) Bush nominated John Roberts to replace Chief Justice Rehnquist and Samuel Alito (after nominating, and then withdrawing, Harriet Miers) to replace Justice O’Connor.
Barack Obama voted against both Roberts and Alito, and even voted to filibuster Alito’s nomination. Of John Roberts, then-Senator Obama wrote:
“There is absolutely no doubt in my mind Judge Roberts is qualified to sit on the highest court in the land. Moreover, he seems to have the comportment and the temperament that makes for a good judge. [….]
I ultimately have to give more weight to his deeds and the overarching political philosophy that he appears to have shared with those in power than to the assuring words that he provided me in our meeting.”
“There are some who believe that the President, having won the election, should have the complete authority to appoint his nominee, and the Senate should only examine whether or not the Justice is intellectually capable and an all-around nice guy. That once you get beyond intellect and personal character, there should be no further question whether the judge should be confirmed.
I disagree with this view. I believe firmly that the Constitution calls for the Senate to advise and consent. I believe that it calls for meaningful advice and consent that includes an examination of a judge’s philosophy, ideology, and record. And when I examine the philosophy, ideology, and record of Samuel Alito, I’m deeply troubled.”
The most obvious solution to the impasse is for Obama to nominate whomever he desires to the Supreme Court, and for 54 committed Republicans to follow then-Senator Obama’s own precedent and reject now-President Obama’s own nominees on ideological grounds. (Senators Cruz and Rubio could even declare that such a maneuver is apparently a good way for first-term Senators to win the White House.)
Republican Senators can expeditiously write a speech justifying their ‘nay’ vote for filibuster vote by downloading Obama’s own speeches, using the Find-Replace feature, and changing “Roberts” or “Alito” to the name of the left-wing Obama nominee in question, and, if appropriate, swapping the words “Democrat” and “Republican.”
As both of the President’s previous nominees to the Court, Elena Kagan and Sonia Sotomayor, were approved by the Senate without much ideological fuss, there is little danger of creating an endless cycle of tit-for-tat. Moreover, replacing Supreme Court Justices in election years is something that has not happened since before the start of WWII, and this particular replacement would radically alter a tenuous ideological balance on the Court.
Scalia was a lion for both conservatism and originalism, a man whose opinions changed the way people think about the law. Previous Obama, Bush, and even Clinton nominees maintained the ideological status quo of the Court. (Both David Souter and Harry Blackmun were appointed by Republicans, but voted with the liberal members of the Court by the end of their careers.)
Not only would this be the first election-year nomination since the 1930s, it would be the first time in decades that a Justice is replaced by his ideological opposite, and the nomination would come from a man who explicitly stated that ideology ought to play a role in the Senate’s “advice and consent” of potential members of the judiciary.
Birdget L. Fay
Bridget L. Fay is an attorney and a former chemical engineer. She resides in Massachusetts.
