The authors of the US Constitution did not outline a two-party system. Nor did they imagine that a plan for reasonable checks and balances would become a tool to empower petty obstructionists.
What the framers established was a system of separated powers with three branches of government: executive, legislative, and judicial. In the event of a vacancy on the nation’s highest court, the founding document explained that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the supreme Court.”
The Constitution does not say that presidents may nominate justices. It says they shall do so.
The Constitution does not say that presidents are limited in this duty by the timing when a vacancy occurs. There is no footnote that says presidents shall only perform their duties in their first terms. Nor is there a footnote that says members of the Senate shall only provide appropriate advice and consent when a president is in his or her first term. And there is certainly no language that suggests that a president’s nominee to the Court must parallel the ideology of the justice he or she would replace.
Yet Republican senators responded to the death of Supreme Court Justice Antonin Scalia by proposing to shred not just the Constitution but precedents that date from the earliest years of the American experiment. Within hours of the announcement of the conservative jurist’s death on Saturday, Senate majority leader Mitch McConnell declared that “this vacancy should not be filled until we have a new president.”
That would leave a vital position vacant for a year.
Hours after McConnell outlined his unreasonable demand, the Republicans who would be president used Saturday night’s crude and chaotic Republican presidential debate to be more unreasonable. They proposed that President Obama abandon his constitutionally defined role in the process. They urged the Republican-controlled Senate to “delay, delay, delay” until the end of the president’s second term. And they proposed ideological litmus tests dictated not by regard for the Constitution but by their own rabid partisanship. Dr. Ben Carson summed up the sentiment when he said “we should not allow a judge to be appointed during [this president’s] time.”