"The President... by and with the Advice and Consent of the Senate, shall appoint... Judges of the supreme Court."
-U.S. Constitution, Article II, Section 2
The sudden passing of Justice Antonin Scalia has brought widespread opining from Republicans that President Obama should allow his successor to appoint Justice Scalia's. Make no mistake: this is nothing more than a manifestation of a collective conniption fit on the right, resultant of their recognition that they stand on the precipice of losing their majority on the Supreme Court. Senate Majority Leader Mitch McConnell (R-KY) stated that the voters should have a say; they did, when they reelected President Obama in 2012 by more than five million votes, as has been pointed out by Sen. Elizabeth Warren (D-MA). Barack Obama is the President of the United States; as such, our Constitution assigns him the responsibility of making appointments to the high court.
A presidential term lasts four years, even if many conservatives now seem to believe it lasts three. Eleven months remain in the President's current term, which is more than enough time for the Senate to perform its constitutional responsibility. Speaking of which, advice and consent does not mean, for example, blanket statements from some Senate Republicans that they would reject any nomination from President Obama before he has even named a nominee. The advice and consent provision has been exemplified in recent history by Sen. Lindsey Graham (R-SC). Sen. Graham voted to approve President Obama's nominations of Sonia Sotomayor and Elena Kagan to the high court. Sen. Graham, of course, does not align ideologically with now-Justices Sotomayor and Kagan, but recognized his role as a senator was to evaluate fitness to serve, not ideological standing. In explaining his vote to confirm Elena Kagan, Sen. Graham said, "the constitution, in my view, puts an obligation on me not to replace my judgment for (President Obama's), not to think of the hundred reasons I would pick someone different." Graham went on to say, "I view my duty as to protect the Judiciary and to ensure that hard-fought elections have meaning in our system."
On CNN's State of the Union program on February 14, 2016, influential conservative pundit Hugh Hewitt posited, "lame ducks don't make lifetime appointments." Since when? The constitution provides otherwise. And labeling President Obama a "lame duck" does not make him so. The way to honor the memory a self-professed constitutional originalist like Justice Scalia is not to defy the constitution. The Senate must do its constitutionally mandated job and consider the President's high court nomination when the time comes. If the Senate Republican leadership neglects its responsibility, the members thereof can never again claim allegiance to the constitution.
