Justice Antonin Scalia had been dead only a few hours when Senate Majority Leader Mitch McConnell announced that the Senate wouldn’t act on any replacement proposed by President Obama. “The American people should have a voice in the selection of their next Supreme Court justice,” McConnell (R-Ky.) said. “Therefore, this vacancy should not be filled until we have a new president.”
This is self-serving sophistry. The American people do have a voice in any nomination Obama makes. They “spoke” when they elected him to a second term that has 11 months remaining. His authority to nominate Supreme Court justices is no more diminished by his supposed lame-duck status than any of his other constitutional powers.
The Senate also has a constitutional duty: to consider presidential nominees expeditiously. A long vacancy is undesirable in part because a court comprised of only eight members raises the possibility of 4-4 decisions that, while they affirm a lower court’s decision, don’t create a national precedent.