U.S. Supreme Court Justice Antonin Scalia's death creates a new partisan fight in Congress and raises the stakes for the presidential election. It does not change the clear intent of the Constitution. President Barack Obama has a duty to nominate Scalia's successor, and the Senate has the responsibility to decide whether to confirm that nomination. To stall and wait for the next president to take office in January would be the wrong approach for the court, the nation and democracy.
Presidents maintain the full authority of the office throughout their terms. There is nothing in the Constitution that prevents presidents from nominating justices or declaring war or issuing executive orders in an election year. There is no common practice for delaying action on Supreme Court vacancies in election years. Supreme Court vacancies have occurred in an election year just twice in the last 80 years, and both times the president nominated someone to fill the vacancy.
Yet within hours of the announcement of Scalia's death Saturday, Republicans were demanding a timeout until a new president takes office. The Republican presidential candidates called on Obama not to nominate Scalia's successor, or for the Republican-led Senate to block confirmation by filibustering or otherwise stalling. That obstructionist approach would be bad for justice and bad politics.
The court faces a number of important issues this year, from abortion restrictions in Texas to Obama's executive orders on immigration to a challenge to public employee unions in California. It is now split 4-4 between liberal and conservative justices, and such a deadlock would merely allow a lower court ruling to stand and set no precedent. The vacancy likely would last more than a year, and that could leave the court effectively paralyzed on any number of important issues. The nation deserves a fully functioning court and finality on the cases before it.
Obama plans to nominate Scalia's successor, and he should nominate someone well-qualified who would be viewed as a moderate candidate. Sri Srinivasan and Merrick Garland, both judges on the U.S. Court of Appeals for the District of Columbia Circuit, have been mentioned as two possibilities. Here's another suggestion: Judge Charles Wilson, a Florida native and former U.S. attorney in Tampa now serving on the U.S. Court of Appeals for the 11th Circuit.
The Democrats have just 46 votes in the Senate, and they will need 14 votes from Republicans to block a filibuster and then five Republican votes for confirmation. The nation has demonstrated it has little patience for partisan obstructions such as the government shutdown over the Affordable Care Act, and the Senate should vote to confirm or reject whomever Obama nominates based on the merits.
At this point, that may be wishful thinking. Scalia's death is another reason why voters should pay closer attention to the presidential candidates' records and less to their bombast. The next president could reshape the Supreme Court, and Scalia was more ideological than other conservative justices before him with the application of his originalist view of the Constitution. Three other justices — Ruth Bader Ginsburg (82), Anthony Kennedy (79) and Stephen Breyer (77) — will be in their 80s during the next president's first term. Imagine the Supreme Court nominations that could be made by Donald Trump or Ted Cruz among the Republicans, or by Bernie Sanders on the Democratic side.
Scalia's death has sparked another partisan fight over the authority of the executive and legislative branches of the federal government, and that fight further erodes public confidence in the independence and objectivity of the judicial branch. The Constitution provides clear direction. Obama should nominate Scalia's successor, and the Senate should vote whether to confirm or reject the nomination.