Even in the hyperdrive of an election year, President Barack Obama has a duty to nominate the most qualified person he can find to replace Justice Antonin Scalia.
Politics are on the president’s side, despite the hyperbole coming from Republicans on the presidential campaign trail and in the nation’s capital.
On Saturday, the day Scalia died, Senate Republican Leader Mitch McConnell hastily declared that Obama should leave the appointment of the critical swing vote on the nation’s highest court to the next president.
California Gov. Jerry Brown had an apt answer, posted on his Facebook page: “Couldn't Mitch McConnell have the decency to at least wait until the funeral before playing cynical politics with this vacancy. Such obstruction and sheer arrogance is unconscionable and deserves the condemnation of all Americans.”
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As they seek the GOP presidential nomination, Sens. Marco Rubio of Florida and Ted Cruz of Texas joined the GOP’s wrongheaded group-think.
“Let the election decide it,” Cruz said on “This Week,” promising to filibuster any nomination.
Noting that Cruz carries the Constitution with him, Sen. Chuck Schumer, D-N.Y., answered later in the program: “Let him show me the clause that says the president’s only president for three years.”
Like Rubio, Sen. Charles Grassley, R-Iowa, the chairman of the Judiciary Committee, strained historical reality by saying Supreme Court justices traditionally are not confirmed during presidential election years. President Ronald Reagan nominated Justice Anthony Kennedy in November 1987, and the Senate confirmed him in February 1988, the year George H.W. Bush won the presidency.
Obama has several potential nominees. One is Jane L. Kelly, a judge on the 8th U.S. Circuit Court of Appeals. The Senate confirmed her appointment to the appellate court by a 96-0 vote in 2013. Cruz and Rubio voted for her confirmation, and Grassley praised her on the Senate floor.
Kelly was a federal public defender in Grassley’s home state of Iowa before becoming an appellate judge. By nominating her, Obama would force Grassley to allow the nomination to proceed or reject someone from his home state, an uncomfortable position.
Another potential nominee is Srikanth Srinivasan, who sits on the U.S. Court of Appeals for the District of Columbia Circuit. Srinivasan was born in India, clerked for Justice Sandra Day O’Connor – a Reagan appointee – and worked in the Solicitor General’s Office under Presidents George W. Bush and Obama. Grassley called him “talented” and “impressive” and the Senate confirmed his appointment 97-0. Cruz and Rubio voted for his nomination.
A third option – and there are others – would be Adalberto J. Jordan, a judge on the 11th U.S. Circuit Court of Appeals. Like Rubio and Cruz, Jordan is a Cuban-American. In 2012, Rubio presented Jordan to the full Senate, saying he was “obviously honored and proud” to introduce him. The Senate proceeded to confirm him 94-5. Cruz was not in the Senate then.
The Senate is in Republican hands for now. But in November, 24 Republican-held seats will be up, including several in swing states. McConnell, Rubio, Cruz and other Republicans need to ask themselves how confident they’re feeling. Could Republican incumbents in Pennsylvania, Illinois, Wisconsin, New Hampshire and Ohio withstand concerted Democratic attacks on the Senate for failing to act on a qualified Supreme Court appointee for purely partisan reasons?
Once the hyperventilating subsides, to the extent it ever does in Washington, senators should see there is much to gain by acting on the president’s qualified nominee. If nothing else, they could show voters that government can function, even in an election year.