Scalia's vacancy is a test of GOP leadership and GOP commitment to Scalia's ideals.
Supreme Court jurist Antonin (Nino) Scalia was an originalist. Scalia asserted that legal questions should be determined by looking at the original intent of the founding fathers when they drafted the U.S. Constitution. According to Scalia, the Constitution is "not a living document. It's dead, dead, dead."
The Constitution is quite clear on the selection of judges for the Supreme Court. Article II, Section 2, Clause 2 of the Constitution specifies that the president "shall nominate, and by and with the advice and consent of the Senate, shall appoint .... judges of the Supreme Court." Thus, the sitting president is required to nominate a candidate to fill a vacancy on the Supreme Court.
The Constitution does not have an exception stated for when a judge sitting on the Supreme Court dies within a year of the next presidential election. The express language of the Constitution states that the sitting president selects the candidate; the sitting Senate then conducts a hearing to provide advice and consent.
The assertion now being presented in TV ads that President Obama should wait until after the election to appoint a replacement to the Supreme Court is a repudiation of the originalist theory practiced by Scalia. Senate Majority Leader Mitch McConnell and Senate Majority Whip John Cornyn and other Senate republicans saying that they will not hold confirmation proceedings until after the election also rebuke Scalia's originalist philosophy.
Scalia's death presents GOP presidential candidates with an extremely important test. Republicans who truly follow the dictates of Justice Scalia must proceed with the Senate confirmation hearings. The Constitution requires the president to nominate a replacement and it requires the Senate to hold confirmation hearings. Cruz and Rubio are senators whose job it is to provide advice and consent to the sitting President. Trump has repeatedly stated that he can remove Congressional gridlock and get Congress to work together across party lines in the same way that President Ronald Reagan worked with Democratic Speaker of the House Tip O'Neil.
GOP leaders who refuse to hold confirmation hearings and attempt to prevent President Obama from making an appointment violate the legacy of the man they seek to replace.
The Supreme Court is required to have nine justices. Waiting until after the election to appoint Scalia's replacement will hamper the operation of the United States' highest court and depart from the express intent of the founding fathers.
Now is the time for the leading GOP candidates to show true leadership and demand that the Senate proceed with hearings required by the Constitution and appoint a Supreme Court judge swiftly. Scalia was an exceptional judge but his death was an inevitable tragedy. All Supreme Court justices leave the bench at some time. The Constitution stipulated the means to deal with the continual and routine change in Supreme Court judges. For democracy to thrive, replacement of Supreme Court justices must be as seamless a process as the turnover of power from administration to administration once a presidential election has been held.
GOP candidates leading the polls are each in a position to ensure the wishes of the founding fathers in the Constitution are respected.
Will any pass the test set out by Nino?
Elizabeth Glass Geltman is an attorney, a 30-year member of the bar of United States Supreme Court and an Associate Professor at the CUNY Graduate School of Public Health and Health Policy where she teaches Public Health Law.