Delay of Scalia replacement threatens civic culture

Following the recent passing of Supreme Court Justice Antonin Scalia, Senate Republicans have made the decision to preemptively reject any presidential nomination of a replacement justice, a choice that crosses a legal and moral line. In an election cycle that has already been more vulgar than any in recent memory thanks to the ugly rhetoric of certain presidential candidates, the strain on our political and civic culture appears to be growing worse every day. More concretely, this decision by Senate Majority Leader Mitch McConnell (R-KY) and the rest of the GOP caucus would mean that the Supreme Court's decision-making would be hamstrung for 330 days — the amount of time until the inauguration of the next President — in a crucial Supreme Court term.

This is one of the busiest and most monumental Supreme Court seasons in our country’s history. The Friedrichs vs. California Teachers Association case addresses whether a teacher's union act of collecting dues for purposes of political speech is against the First Amendment. The Evenwel vs. Abbott case tackles whether states should apportion state legislative districts based on total population or registered voters — a policy that disproportionately hurts people of color, the poor and the young. On top of this, cases on abortion, contraception and the death penalty will be heard. If a replacement is not found and these hearings go to an even vote of four versus four, the Supreme Court’s verdict is nulled and the decision reached by the lower courts holds. With an empty justice seat on the highest court in the country, it is as though an entire branch of government has been taken out of our system of checks and balances.

The Constitution’s rules concerning judicial succession are clear, so the argument should be about who gets appointed — not about when and by whom. As Senator Elizabeth Warren (D-MA) wrote in a recent Facebook post, Senate Republicans should abide by their loyalty to the Constitution not solely when it is in their political benefit and "abandoning the duties they swore to uphold would threaten both the Constitution and our democracy itself." When President Reagan had to fill the vacancy in the Supreme Court in November 1987, a Democratic Senate confirmed Justice Anthony Kennedy to the Court by a vote of ninety-seven to zero within 65 days. The reason why the vote was swift and unanimous was because President Reagan had fulfilled his constitutional duty and he selected a qualified person. Despite the fact that the nomination took place less than a year before a presidential election and the Democrats may have disagreed with the appointment of a conservative nominee, a vote was held because the constitutional processes upon which the nation's civic and political culture have been built were respected. The same cannot be said of those engaging in bald-faced politicking on Capitol Hill currently.

Both parties have stretched the rules to their advantage in the past, whether in gerrymandering state congressional districts every ten years or in more subtle ways. Would Democrats take advantage of a similar scenario? Republican stalwarts may point to Minority Leader Harry Reid (D-NV) using the "nuclear option" in the Senate to push bills through unlimited filibustering, a rule once held sacred but thrown away to benefit the Democrats, then in power. Damaging the whole judicial system, however, is of another order, and should be treated as such.

American civic culture has fluctuated in strength at different times in our history, but the hyper-polarization on the Hill in the last few years has now morphed into blatant disregard for the law. Senate Republicans need to put aside their political differences with the Democrats, and allow the highest court to function as intended.