After Supreme Court Justice Antonin Scalia died this year, President Obama went about nominating a successor, as required by the Constitution. But Senate Republicans — including John McCain of Arizona — resisted, insisting that the vacancy should be filled by the president chosen by voters in November. They invoked (or fabricated) a "rule" that a president's right to have his Supreme Court nominees considered by the Senate lapses in an election year.
Now that Hillary Clinton seems likely to win the election, however, some Republicans are changing their tune. This week, McCain promised that "we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up." Huh?
It was a reminder of just how unprincipled Republicans have been in refusing to bring the court up to strength. This fight has been all about partisan advantage, and if that means the court must leave some important issues unresolved because of a 4-4 deadlock, so be it.
McCain's outrageous threat also highlighted a longer-term problem: the bipartisan repudiation of the idea that the Senate should defer to a president's choice of a Supreme Court justice so long as the nominee is well qualified, untarnished by accusations of personal wrongdoing and within the mainstream of legal thought.
In 2005, 22 Democratic senators voted against the confirmation of Chief Justice John G. Roberts Jr., regarded as a moderate conservative and rated "well qualified" by the American Bar Assn. Among those voting "no" was Barack Obama, then a senator from Illinois. (Ironically, Roberts would go on to cast crucial votes to reject challenges to Obama's signature domestic proposal, the Affordable Care Act.) Almost five years later, 36 Republican senators, including McCain, voted against Obama's nomination of Elena Kagan, a moderately liberal jurist also rated "well qualified" by the ABA.
And now McCain threatens to oppose "any" Hillary Clinton nominee – though his spokeswoman later said that he would "thoroughly examine the record of any Supreme Court nominee put before the Senate and vote for or against that individual based on their qualifications."
The Constitution does provide for a role for the Senate in the appointment of judges, including Supreme Court justices. But senators abuse that authority when they reflexively reject or block a nominee from a president of the opposite party. Merrick Garland, an experienced federal appeals court judge who was nominated by Obama in March to replace Scalia, still hasn't been afforded even a hearing.
If Clinton wins and the voters also install a Democratic majority in the Senate, Republicans who decide to stonewall her Supreme Court nominations may find that their ultimate check on the president — the filibuster — will be taken away from them. Democrats went part of the way there in 2013, barring filibusters on other presidential nominations after Republicans blocked Obama's appointments to an important federal appeals court.
The Republicans' obstructionism is wrong; it also could backfire by giving the next president an even freer hand in shaping the Supreme Court. Some might call that poetic justice.