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National Issues

Disregarding the Constitution they seek to uphold

Justice Antonin Scalia, who passed away Saturday after nearly 30 years on the U.S. Supreme Court, helped bring the “originalist” interpretation of the Constitution into mainstream legal opinion.

While I disagreed with his reading of the Constitution, it is hard to deny Justice Scalia’s consequential impact. His colorful writing style and snarky dissents were second to none.

However, Senate Republicans have decided to honor Justice Scalia by abdicating their enumerated responsibilities in the very document he sought to protect. The “appointments” clause in Article II of the Constitution gives the president power to appoint ambassadors, cabinet heads and Supreme Court justices “with the advice and consent of the Senate.”

Yet, only a few hours after Scalia’s death was announced, Senate Majority Leader Mitch McConnell (R-KY) issued this statement: “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.”

Senate Judiciary Committee Chairman Chuck Grassley (R-IA) echoed McConnell’s sentiment and made clear he had no intention to begin the confirmation process in his committee.

Unsurprisingly, both senators did not feel the same way when they voted to confirm Justice Anthony Kennedy nine months before the 1988 presidential election. McConnell’s statement also implies that somehow the “voice” of the American people was not represented by those who voted to re-elect President Obama in 2012.

The belief that the president shouldn’t fulfill his constitutional obligation was the sole source of agreement at Saturday’s Republican debate. Sen. Ted Cruz (R-TX) said “we owe it to [Justice Scalia] and the nation…to ensure that the next president names his replacement.” I imagine he won’t be quite so enthusiastic if President Hillary Clinton and a Democratic Senate majority get to make that choice next year.

The implications of who will fill the open seat on the high court are particularly significant this year. Consequential cases concerning affirmative action, Obama’s Clean Power Plan and executive action on immigration, among others, are all scheduled to be heard.

If a replacement is not confirmed until next year and the court’s eight remaining justices reach a 4-4 verdict, the lower court’s ruling is upheld and no precedent is set. This outcome is entirely plausible since the high court now has an even distribution of conservative- and liberal-leaning justices.

The American people deserve to have a Supreme Court able to definitively rule on the constitutionality of these important issues. McConnell and his Republican colleagues can’t pick and choose to follow the constitution when it’s politically convenient. They should start governing if they want to keep their majority in the Senate next year.

Kevin Fulton, from Pittsburgh, is a first-year Master’s of Public Policy student at Duke.


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