Four weeks ago today, President Obama nominated Judge Merrick Garland for the U.S. Supreme Court, effectively offering the Senate Republican majority a compromise choice. GOP senators, some of whom had offered generous praise for Garland, have nevertheless stuck to an unprecedented partisan blockade, and Garland will likely be the first high court nominee in American history to be denied a hearing and a floor vote.
With this in mind, the conventional wisdom is that the Supreme Court vacancy will remain in place through the rest of the year, pushing the issue until 2017, at which point the new president and the next Senate will work on filling it.
But why assume that Republicans will be more responsible next year? The Huffington Post had an interesting piece on this.
Republican Senate leaders may have said repeatedly that they are delaying President Barack Obama's Supreme Court nominee so the people can have a say through this year's elections — but that doesn't mean they're going to give up their right to block that nominee if they don't like what the people decide. [...] "Clearly the requirement for 60 votes [to confirm a nominee for] the Supreme Court is going to remain, regardless of whether it's Republicans or Democrats that are in control of the Senate," Sen. Mike Rounds (R-S.D.) said.
Hmm. So GOP senators believe elections have consequences, except for the 2012 presidential race which doesn't, and "the people" should decide who gets to appoint the next Supreme Court justice, except Republicans may balk if "the people" elect someone the party dislikes.
This, evidently, is not supposed to be a contradiction. "It's based upon what your Constitution will say, and based upon what your previous practices have been," Rounds told the Huffington Post. "In this case, I don't think there's any question but that you'll continue to have 60 votes necessary for a lifetime appointment to the United States Supreme Court."
To the extent that reality matters, the Constitution does not require super-majorities in the Senate to confirm judicial nominees, and "previous practices" have meant confirming justices by majority rule.
Sen. Jeff Flake (R-Ariz.), meanwhile, added this baffling perspective: "My theory is we ought to pick the most conservative jurist we can to replace Justice Scalia to maintain the balance of the court. But the principle that the next president should decide is not one that I share."
If the senator was quoted accurately, this might be one of the strangest arguments to date. "We" ought to pick the next Supreme Court justice? Who's "we"? The president shouldn't have the authority to choose the nominee? Was the Constitution quietly amended when no one was looking?
If the political world is thinking that next year, the process will go smoothly because the president Republicans despise will be out of office, that assumption needs to be reevaluated. At least some GOP senators believe an eight-member Supreme Court is no big deal, and it's entirely possible that Garland won't be the last nominee to be treated in a ridiculous way.