Senate Majority Leader Mitch McConnell said that the next president should be able to choose a successor for the Supreme Court vacancy created Saturday by the death of Justice Antonin Scalia.
Both the Senate Judiciary Committee and the full Senate must vote to confirm any nominees to the court, but with the Senate now controlled by Republicans, it may be difficult for President Barack Obama to get an appointment confirmed before he leaves office early next year.
“The American people should have a voice in the selection of their next Supreme Court Justice,” McConnell said in a statement Saturday. “Therefore, this vacancy should not be filled until we have a new president.”
The Kentucky Republican’s remarks echoed those of Sen. Ted Cruz of Texas, a leading Republican presidential candidate and a member of the Senate Judiciary Committee. Cruz and other conservatives fear any opportunity for Obama to appoint a third justice to the high court could tip the balance in favor of liberals.
Scalia, who was appointed to the bench by President Ronald Reagan in 1986, was a longtime conservative stalwart on issues including abortion, gay rights, affirmative action and gun control.
“Justice Scalia was an American hero,” Cruz tweeted Saturday. “We owe it to him, & the nation, for the Senate to ensure that the next president names his replacement.”
Carl Tobias, a law professor at the University of Richmond, said that the Senate has a constitutional duty to consider the nominees a president makes to the Supreme Court.
“I don’t see any reason he can’t nominate somebody as soon as he’s ready to do that,” Tobias said of Obama.
Otherwise, the court could have a vacancy for a year. With only eight justices, some decisions could result in a 4-4 tie. When that happens, the lower court decision stands.
Minority Leader Harry Reid said Saturday that Obama “can and should send the Senate a nominee right away.”
“With so many important issues pending before the Supreme Court,” the Nevada Democrat said in a statement, “the Senate has a responsibility to fill vacancies as soon as possible.”
If push comes to shove, Obama could make a recess appointment to the high court.
President Dwight Eisenhower made two recess appointments: Earl Warren and William Brennan. Both were confirmed, though both Republican appointees went on to become the anchors of a liberal court.
But Tobias said it would be better for both Obama to nominate a successor to Scalia, and for Senate Republicans to vote on the nominee. Blocking Obama’s choice could backfire on Republicans if they lose the White House.
“They may really not like what Hillary Clinton gives them,” Tobias said. “It may be better to deal now.”