For three reasons, I believe the best way for the Senate to exercise its power of advice and consent regarding the Scalia vacancy is to conduct the confirmation process after this toxic election season has passed.
The first reason is precedent. This is only the third vacancy in nearly a century to occur after the American people had already started voting in a presidential election, and in both the previous two instances — in 1956 and 1968 — the Senate did not confirm a nominee until the following year. The Tribune's ignorance of this longstanding history is no excuse for falsely accusing Republicans of making it up "out of whole cloth."
The second reason for my conclusion is the consistent guidance from past Senate leaders of both parties. For example, in 1992, another presidential election year, then-Judiciary Committee Chairman Joe Biden recommended that the entire Supreme Court appointment process — including the president's nomination — be deferred until after the election. Many other Senate Democratic leaders, from Harry Reid to Chuck Schumer, have said the same thing, and their rationales apply just as well today as they did in the past.
The third reason is that elections have consequences. The 2012 election was obviously meaningful for the president's power to nominate and President Obama has exercised that power by nominating Judge Garland. But the 2014 election was also meaningful for the Senate's power of advice and consent. In that election, the American people elected a Republican Senate majority in large part to check President Obama's executive overreach. Given how crucial the courts have proven in holding this administration accountable to the Constitution, the Senate has every reason to approach lifetime appointments cautiously and deliberately, especially appointments to the highest court in the land.Sen. Hatch articulated three distinct and exceptionally clear points that you are unlikely to find in any of the media articles about Judge Garland's nomination, which all claim he is a moderate candidate because Obama said he was a moderate. It is easy to attempt to slap a label on a candidate. However, in this case the facts simply cannot support the president’s assertion. As Senate Majority Leader Mitch McConnell discussed in an interview on Fox:
I can't imagine that a Republican majority in the United States Senate would want to confirm in a lame duck session a nominee opposed by the National Rifle Association, the National Federation of Independent Business that represents small businesses—that have never taken a position on the Supreme Court appointment before—they're opposed to this guy. I can't imagine that a Republican majority Senate even if it were assumed to be a minority, would want to confirm a judge that would move the court dramatically to the left. That's not going to happen.
Look, Barack Obama calling judge -- this judge a moderate doesn't make him a moderate. This judge would move the court dramatically to the left. He's enthusiastically supported by MoveOn.org.Even under fire from the current administration, McConnell continued reiterate similar and very valid points on other programs:
The Senate has a role to play here. The president nominates, we decide to confirm. We think the important principle in the middle of this presidential year is that the American people need to weigh in and decide who's going to make this decision. Not this lame duck president on the way out the door, but the next president. Obama's interest in shifting the court left has been well documented.
If you want to discuss the nominee just for a minute, even though Barack Obama calls him a moderate, he's opposed by the NRA. He's opposed by the National Federation of Independent Business which has never taken a position on a Supreme Court nominee before. The New York Times said it would move the court dramatically to the left. But this is not about this particular judge—this is about who should make the appointment. We're in the process of picking a president, and that new president ought to make this appointment which will affect the Supreme Court maybe for the next quarter of a century.Democrats claim that the “people spoke” when Obama was reelected. No one is arguing Obama has the right to nominate. However, “the people” also spoke when they voted a Republican Majority in the senate. Senators, you have our thanks for standing up to protect the balance of power between branches of the government and ensuring that a failed administration cannot continue to influence this county through the Supreme Court for the next quarter century.