It is very ironic that the obstructionism the GOP is proposing in hopes of preserving the next Supreme Court appointee for a Republican president is the exact thing that the now deceased Justice Antonin Scalia would disapprove of.
Justice Scalia was an originalist, which means he applied the Constitution to each case at its strictest interpretation. The fact that the Republicans are vowing to not allow President Obama’s appointee to get onto the Supreme Court is flat out wrong and unconstitutional. Article II, Section 2, Clause 2 of the Constitution governs the appointments clause, which states that the President of the United States shall nominate and by advice and consent of the U.S. Senate shall appoint judges of the Supreme Court.
Republicans claim they want to take politics out of this nomination by punting until after the election season. But history is replete with instances in which U.S. presidents have appointed Supreme Court justices during election years. Such examples can be found with President William Taft, President Woodrow Wilson, President Herbert Hoover and President Franklin D. Roosevelt. The Republican’s favorite president, Ronald Reagan, appointed Justice Kennedy in his late term with a Democratic-controlled Congress. There is no known practice of purposely leaving a Supreme Court Justice seat vacant just because it is an election year. Scalia as a constitutional purist would abhor injecting politics into this process and would be diametrically opposed to the Republicans’ actions.
Although it is clear, however, that Justice Scalia stood against social progress for the African-American community, it is important to point out the hypocrisy that the Republicans now espouse. If they held his ideas and legal prowess in such high regard, then they would not block President Obama’s appointee. However, they fear honoring Justice Scalia’s originalist bent because the appointee would undoubtedly be more liberal and will impact the ideology of the bench for a generation.
POTUS can bypass Republican obstructionism by making recess appointments. Article II, Section 2 of the Constitution allows the President to fill up all vacancies that may occur during the recess of the Senate. Thus, President Obama has the rare opportunity to make a recess appointment to the Supreme Court but could only do so this week and next week, as the Senate and House are adjourned until February 22nd. Last summer, the President’s recess appointments to the National Labor Relations Boards were overturned by the Supreme Court because POTUS made them while the Senate was holding pro-forma sessions every three days. The High Court found that a true recess must last for more than three days. However, President Obama’s recess appointment would have to be approved by the Senate at the end of the next session of Congress or the position will become vacant again.
It is worth noting that, overall, modern U.S. Presidents have consistently made numerous recess appointments to various positions, but only President Obama’s appointments have been stymied time and time again. President Obama has only made 32 recess appointments, while Ronald Reagan made 232, George W. Bush 171, Bill Clinton 139 and George H.W. Bush 78 (served one term).
One thing that Democrats and Republicans understand is the next Supreme Court Justice will significantly impact our lives and the direction of this nation.
The African-American community and all progressives should vow to vote against any sitting official that refuses or fails to support President Obama’s appointee. At the end of the day, it is their job. We are all tired of paying Congress for their refusal to work with each other and our nation’s first black president.