THE BLOG
02/15/2016 03:14 pm ET Updated Feb 15, 2017

Obama Has Every Right, Nay a Duty, to Nominate Scalia's Replacement: Maybe He Should Sue!

ASSOCIATED PRESS

Almost immediately upon hearing the shocking news that Supreme Court Justice Antonin Scalia had unexpectedly died Saturday, Senate Majority Leader Mitch McConnell said he would not permit the president to fill the court seat.

This is a new one. In the past there have been heated Senate confirmation hearings over a Supreme Court nominee, leading to several turndowns, the withdrawal of some, including President Johnson's decision to elevate Justice Abe Fortas to Chief Justice, but I can't remember a time when it was declared in advance with no foreknowledge of a selection that a president should not be allowed to nominate a replacement.

McConnell said "The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President." His declaration is absurd and an abrogation of the Constitution, and another example of his venality towards Obama.

McConnell is determining that one of the constitutionally-mandated powers of the presidency -- the right to appoint -- should be restricted even though Obama has more than eleven months left to his term in office. Let's not forget this is a man who famously said in 2010 that "The single most important thing we want to achieve is for President Obama to be a one-term president."

Now, it would be fair to assume that a Democrat would have felt similarly about, let's say, George W. Bush, but would they have stated it in such obstructive terms? Obama still had two years before his re-election and it was clear McConnell intended to throw stumbling blocks in the way of everything the president offered, not to mention his continuing efforts to repeal the recently passed Affordable Health Care Act.

So, my reading of the quote is they wanted to treat Obama miserably, no matter what he proposed, to make him look like a loser, unable to accomplish anything meaningful, but in the process failed to do so resulting in his convincing re-election victory, furthering the acrimony, which no doubt led to the disastrous 2013 government shutdown for over two weeks.

Leading us to this past weekend's events, where McConnell's dearth of ethics and responsibility, which in years past permitted such political opposites as Ronald Reagan and Tip O'Neill to work together, has come forth with his irresponsible statement.

First of all, it is the right and expectation that the president may and should appoint a supreme court justice and not be told that, even with almost a year left in office, he has no apparent right to do so. To me that sets forth a potential legal battle, not to mention the political uproar if Obama nominates a progressive, but generally middle-of-the-road nominee with sterling credentials.

Let's start with the legal issues first. McConnell stated up front he will not bring to the Senate floor anyone Obama nominates, thus he, in a de facto manner, is violating the constitution. He is also, by stating his opposition to a yet unknown candidate, showing his bias, not to the nominee but to the nominator himself. I'm not a legal scholar, but I do know the law (and constitution) can be interpreted in different ways, and it would seem this inhibition of presidential rights might well lead to a ruling by the Supreme Court.

While the Supreme Court in the past has voted on political grounds (think Bush v. Gore - 2000), there have been swing votes by Kennedy and Roberts on issues such as Obamacare and Gay Marriage. Might the Supreme Court Justices believe that a Senate led by an obstructionist had overstepped its boundaries and is tainting the sanctity of the Court?

Indeed, why can't Obama sue the Senate? In September of 2015 in House of Representatives v. Burwell, a court determined that the House of Representatives could sue the Executive Branch over funding of the Affordable Care Act.

Next, regardless of whether Obama sues McConnell, will McConnell's vicious action pass the smell test? Alongside of a no doubt immediate (certainly within a month) selection of a very acceptable nominee to all but the most dire conservatives, might there be a number of GOP senators who don't want this to be an election issue, including moderates like Maine's Susan Collins, Illinois' Mark Kirk, Ohio's Rob Portman, New Hampshire's Kelly Ayotte and Alaska's Lisa Murkowski and relative moderates like John McCain of Arizona?

GOP senators up for re-election this year include, not only Murkowski, Kirk and Portman, but also Marco Rubio. If he doesn't get the nomination will he risk antagonizing the population in his swing state of Florida? Also up for re-election are Roy Blunt from Missouri, another swing state. And Pat Toomey, who had a close race in Pennsylvania, as did Ron Johnson in Wisconsin.

Plus, Dan Coats in Indiana is not running for re-election, a state which went for Obama in 2008.

With all these factors in place, let's assume McConnell is open to being reasonable. A difficult notion to engage, but might one say, look, if your candidate wins in November there is a likelihood that one or more of the liberals, such as Ruth Bader Ginsburg or Stephen Breyer might not have enough juice to stay. Then your side gets to pick, changing the judicial landscape once again.

Of course this presumes Mitch McConnell and his cadre of unpleasant naysayers -- chief among them Ted Cruz, who already announced his intention to filibuster Obama's choice -- have the integrity to engage in fairness, to respect the fact that Barack Obama is still president for an appreciably long time and deserves to exercise his power accordingly.

The answer is they probably won't, but it is possible that clearer heads in their party, plus the onset of terrible polling numbers against them might make them see what awaits them in November if they do not act in a mature and responsible manner. If not, what's next? If they discount the reality of Obama being president for the last full year of his term, why not cut out funding for the White House and force the president and his family to move out. They might argue, with a $400,000 salary, he can certainly afford to rent a house in the Virginia suburbs.

It's good to be alive in interesting political times.

Michael Russnow's website is www.ramproductionsinternational.com