The Supreme Court After Justice Scalia – Why The Senate Should Not Delay Ratification of New Justice

By NEW YORK TIMES THE EDITORIAL BOARD FEB. 14, 2016

When Antonin Scalia was named by President Ronald Reagan to fill a vacancy on the Supreme Court in 1986, the Senate considered the nomination for 85 days, then voted to confirm him. The tally was 98-0.
That unanimity was by no means a measure of widespread agreement with Justice Scalia’s judicial philosophy. Rather it was the Senate’s customary acknowledgment — at least until recently — that the president had fulfilled his constitutional duty and selected a clearly qualified person for the post.
Thirty years later, and within hours of the news that Justice Scalia had died, Senate Republicans, led by Majority Leader Mitch McConnell of Kentucky, rejected that practice outright. It would not matter if President Obama nominated the ghost of Ronald Reagan himself, they appeared to suggest — there will be no confirmation hearings until Mr. Obama has packed his bags and moved out of the White House. Mr. Obama promptly replied that he planned to send a nomination to Congress shortly.
No one would have chosen for the next vacancy on the court to come about in this way, but now that it has, the implications in both the short term and long term are profound. Many of this year’s biggest cases — including those dealing with abortion rights, contraception, immigration, public-sector unions, and redistricting — were likely to be decided by a 5-4 vote. Justice Scalia’s death means the justices may well split 4-4 in many of these decisions.

A tie vote upholds the court ruling below and sets no precedent; it is as though the justices never heard the case in the first place. But this would do more than prolong uncertainty; it could, in some cases, perpetuate harm for great numbers of people — women who have been grievously hurt by proliferating abortion restrictions at the state level, which have been challenged in the court; law-abiding immigrants Mr. Obama has tried to protect from deportation by reforming enforcement policies. The justices may also choose to set cases that end in tie votes for reargument, as they have done in the past. But the bottom line is that either way, people who are due justice are not served by the uncertainty of prolonged judicial paralysis.
Who will Mr. Obama choose? He has his pick among many strong, qualified candidates, any one of whom would be well within the mainstream of American legal thought. Several — including Sri Srinivasan and Paul Watford — are federal appeals court judges whom the Senate already confirmed in bipartisan votes. Mr. Srinivasan, a 48-year-old son of Indian immigrants, was confirmed to the Court of Appeals for the District of Columbia circuit in 2013. The vote was 97-0.
The question now is whether this Senate will weigh any of these candidates on the merits, or whether as its leaders suggest, it will use every trick in the book to deny Mr. Obama his choice. The latest Republican talking point is that for 80 years it has been “standard practice” not to confirm any Supreme Court nominee in an election year. Besides being untrue — Justice Anthony Kennedy was confirmed by a Democratic Senate in 1988 — the claim actually insults Justice Scalia, whose originalist, text-based approach to the Constitution would surely have found room for one of a president’s explicit constitutional obligations.
Senators are free to vote yes or no on any nominee. But not to vote at all is an enormous insult and grave disservice to millions of Americans awaiting justice.
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