President Obama’s Supreme Court Nomination
The confirmation of a Supreme Court Justice is a solemn responsibility that the President and the Senate share under the U.S. Constitution. It is not a political opportunity that reflects “left” or “right,” Democrat or Republican. It’s a serious obligation to make sure that an indisputably qualified person of integrity is nominated and confirmed to sit on the highest court in the land.
The Constitution of the United States establishes an important system of checks and balances that ensures each branch of government plays its role in the running of the federal government. The Supreme Court is a vital institution of American democracy and, since the founding of our country, the President of the United States has had the responsibility to appoint a Justice to the Supreme Court every time — and any time — there is a vacancy on the bench. It then falls to the United States Senate to confirm that nominee before he or she can take her seat on our nation’s highest court.
Article II, Section 2, Clause 2 of the Constitution — known as the Appointments Clause — is unambiguous about these roles and responsibilities:
[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate,shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The passing of Justice Antonin Scalia has left a vacancy that must be filled and President Obama has a Constitutional responsibility to nominate someone to take his place. As the President said, any politician who claims to be a strict reader of the Constitution and then claims that there are restrictions on when the President should fulfill this duty is misleading the American people.
The President will approach this nomination process with the same sense of duty and purpose that he brought to the first two nominations of his tenure, committed to doing right by the American people.
The Senate has more than enough time to confirm a nominee to the Supreme Court. In considering candidates, the President plans to nominate an indisputably qualified legal mind who will serve with honor and integrity on the Supreme Court.
Learn more about his historic nominees: Justice Elena Kagan and Justice Sonia Sotomayor.
The Supreme Court is too vital an institution to our democracy to be subjected to election-year brinkmanship. As the highest court in the nation, it shapes the very foundation of our laws and liberties. This process is not about the politics of Democrats or Republicans, but about the solemn responsibility that our Executive and Legislative branches share under the Constitution.
Throughout history, members of both parties in Congress and in the White House have done their jobs so that the Judicial Branch can do its own. Failing to do so would be an unprecedented dereliction of duty.
Here are the facts:
Six Justices have been confirmed in a presidential election year since 1900.
For more than two centuries, it has been standard practice for Congress to confirm a president’s Supreme Court nominee, whether in a presidential election year or not. Of the six justices confirmed since 1900, three have been Republicans. The most recent Justice to be confirmed in an election year was Justice Kennedy — appointed by President Reagan — who was confirmed by a Democratic-controlled Congress in February of 1988.
Every nominee has received a vote within 125 days of nomination.
Since 1975, the average time from nomination to confirmation is 67 days. In fact, since 1875, every nominee has received a hearing or a vote. The longest time before confirmation in the past three decades was 99 days, for Justice Thomas, and the last four Justices, spanning two Administrations, were confirmed in an average of 75 days.
The Senate has almost a full year — more than 300 days — to consider and confirm a nominee.
It will be harmful and create unsustainable uncertainty if Congress fails to act on the President’s nominee.
The Supreme Court could go the better part of two Terms with a vacancy if the Senate rejects its Constitutional responsibility. It’d be unprecedented for the Court to go that long with an empty seat. Here’s why it’s harmful:
The Court’s 4-4 decisions have no value in establishing precedent on which future decisions can rely. They also cannot establish uniform nationwide rules. That means if multiple courts ruled differently on an issue before it arose at the Supreme Court, a 4-4 ruling would leave those different rules in place in different states. The result is an unsustainable uncertainty — for the law, for individual liberties, and for our economy.
The Road Ahead
Filling a Supreme Court vacancy is not a political prerogative — it is a basic function and fundamental obligation for both the Executive and the Legislative branches. Throughout his career in public office and as recently as last week in Springfield, the President has challenged the American people and their political institutions to build a better politics based on the greater good of the country. He expects and even welcomes a robust confirmation process for the nominee he sends to the Senate. But the Founders anchored our country in “a visionary Constitution that separates power and demands compromise.” The Supreme Court is the highest court in our land. As President Obama said, “this is the one court where we would expect elected officials to rise above day-to-day politics.”
Unfortunately, the fact that we’ve almost grown accustomed to every nomination being contested and everyone being blocked regardless of their qualifications is a measure of how much the rancor in Washington has prevented us from getting basic work done. That is not how our democracy is supposed to work. Now is a vital moment for Republican Senators to rise above that rancor and fulfill a Constitutional duty — because the stakes are high.
There are consequential issues in front of the Court this term and surely will be next term. So if basic precedent is followed, the President will present his nomination to the Senate and the American people and that nominee will receive a vote this year. As President Ronald Reagan said when he nominated Justice Kennedy:
President Obama has presented 39 judicial nominations that are still awaiting a final vote. The President plans to offer his most important remaining judicial nomination to the Senate. It’s time for Republicans in the Senate to consider that candidate. As President Obama said, “I intend to do my job between now and January 20 of 2017, I expect them to do their job as well.”
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