Opinion: We Deserve a Full Supreme Court Bench

by Raul A. Reyes /  / Updated 

No way, no how. That has been the message from Republicans on allowing President Obama to name a successor to Justice Antonin Scalia on the Supreme Court.

Senator Mitch McConnell (R-Ky.) said, “This vacancy should not be filled until we have a new president.” Sen. Charles Grassley (R-Iowa) said in a statement that any nomination “would be a hyper-political slugfest.” Sen. John Cornyn (R-Texas) warned of the damage that any candidate would risk to their reputation, saying that a potential nominee “would bear some resemblance to a piñata.”

These conservatives seem willfully blinded by partisanship. Not only does the president have a constitutional duty to nominate a justice, there is ample historical precedent to support his doing so. Americans have a strong vested interest in seeing a full Supreme Court bench, and there is too much at stake for Latinos to have a vacancy on the high court.

To understand why the president must choose a replacement for Justice Scalia, start with the constitution. The Appointments Clause (Article 2, Section 2) states that, “The President... shall nominate, and by and with the Advice and Consent of the Senate, shall appoint… Judges of the Supreme Court.”

It doesn’t get clearer than that. Notice the use of the word shall; our founders did not say that the president can nominate a Supreme Court judge. They said that the president shall nominate a Supreme Court judge, indicating an imperative.

The Constitution does not contain any exceptions or special provisions for naming Supreme Court justices 'during an election year' or in a 'lame-duck period'...It represents obstructionism of the highest order.

So even if President Obama were willing to let the next president name a justice, that would not be his prerogative. He has a constitutional responsibility to name a justice. This obligation is a critical component of our government’s system of checks and balances, and cannot be taken lightly.

Consider that the Constitution does not contain any exceptions or special provisions for naming Supreme Court justices “during an election year,” “in a lame-duck period,” or “when Obama is president.” There are no such exceptions. None.

That has not stopped GOP presidential candidate Ted Cruz from saying, "We have 80 years of precedent of not confirming justices in an election year." But his assertion is incorrect.

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Then-President Ronald Reagan nominated Justice Anthony Kennedy to fill a vacancy on the Court in 1987, and he was confirmed in 1988, an election year. In fact, out of the 13 occasions when there has been an opening on the Court due to death, illness, or retirement, the Senate has acted on such vacancies 11 times.

Among those confirmed in an election year were legal giants like Justice Louis Brandeis (1916) and Justice Benjamin Cardozo (1932). For the Senate to refuse to give a candidate a fair hearing even before he or she was nominated is wholly unprecedented. It represents obstructionism of the highest order.

Latinos have a particular interest in having a full Supreme Court, because Hispanics are increasingly at the heart of critical national issues. Current and upcoming cases before the Court deal with executive action on immigration, affirmative action, Texas’ abortion restrictions, and Texas’ challenge to the “one person, one vote” principle, all of which will have a significant impact on Latinos. No wonder that the Hispanic National Bar Association, along with other bar associations representing communities of color, recently sent a letter to the Senate Judiciary Committee in support of the president making a nomination. These organizations rightfully pointed out that a full Supreme Court is essential to a fully functioning judiciary.

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Some conservatives have seized on remarks made 24 years ago by Vice President Joe Biden, then on the Senate Judiciary Committee, as evidence of precedent for their current position. “It is my view that if a Supreme Court justice resigns tomorrow or within the next several weeks, or resigns at the end of the summer, President Bush should consider following the practice of a majority of his predecessors and not — and not — name a nominee until after the November election is completed,” Biden said in 1992.

However, as Biden explained in a recent New York Times op-ed, his comments then were not a call to obstruct any nominee but a call for a more collaborative nomination process and a consensus candidate. Biden noted that, while he headed the Senate Judiciary Committee, every Supreme Court nominee was given a hearing and a vote in the Senate and a full vote on the floor of the Senate.

Besides, if GOP Senators do not like Obama’s pick for the Court, they can always vote no and reject his nominee.

Bear in mind that a majority of the public wants a nominee and a vote. Polls by Reuters, CNN, and other outlets show that most Americans want Obama to nominate a justice, and for the nominee to receive a hearing.

The Republican position on Obama’s high court nominee is an insult to our democracy. Latinos and other Americans deserve a full Supreme Court bench.

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