Conservatives and the Republican party have an obligation to the principles of Liberty and Justice, and to the freedom of future generations of Americans to take any and all actions needed to preserve the sanctity and legitimacy of the Supreme Court by denying President Obama the opportunity to irresponsibly fill the vacancy created by the untimely death of Justice Antonin Scalia. Hugh Hewitt makes this argument perfectly in a recent article for the Washington Examiner, in which he says:
Nor should the GOP base hesitate to fight over this issue. The Supreme Court has inserted itself into every manner of controversy over the past 30 years, from abortion to guns to marriage and now immigration. It has assumed power never intended it by the Framers, but it is what it is and there is no going back. Thus who controls the court controls the meaning of the Constitution. If there is anything worth fighting for it is the future of the Constitution, and thus Senate Republicans have no choice here. Those that disagree may as well stop campaigning, and they will certainly stop getting campaign support from me. Their Democratic opponents will trounce them if even a small fraction of the GOP base is betrayed on this huge issue.
John Yoo, writing in the National Review, makes additional points that bolster the argument:
The appointment is critical not just because it comes during a presidential-election year. The Supreme Court is finely balanced between conservatives and liberals at a time when it still rushes to confront the most controversial issues of the day. Cases on immigration, affirmative action, religion, abortion, and free speech, among others, sit on the Court’s docket right now, awaiting decision. As the Court is now split 4–4 between conservatives and liberals, this November’s elections will serve as a referendum on these issues and whether the conservative revolution in constitutional law will continue.
Democrats and the Left will rant and rave that the Republicans are engaging in rank partisanship, or that the blocking of a nominee is “[blatant] political opportunism,” or that “elections have consequences,” pointing to Obama’s reelection in 2012 as the only decisive criteria worth consideration. But they willingly and deceitfully ignore that the voters also spoke in 2014 when they gave control over the Senate to the Republican Party in overwhelming fashion, and maintained GOP control in the House. After six years of Obama misrule, the voters decided they wanted to have adults back in charge. The left wing arguments not only de-legitimatize the outcome of the 2014 election, casting aspersions on the voters who chose to restore responsibility and accountability to government, but also conveniently ignores Democrat malfeasance and malpractice during the administration of George W. Bush when (led by Chuck Schumer and Patrick Leahy) they deliberately, purposefully and maliciously blocked any judicial nominee put forward by Bush: The ultimate fact is that Republicans control the Senate. Yes, the President has the authority to propose nominees to the court, but the President has no right to expect approval or confirmation. The President must yield to the consent of the Senate. Article II, Section 2, Clause 2 of the Constitution says that;
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
Read this section carefully. Nowhere does any stipulation or mandate of a timeframe appear. Nowhere does an obligation to hold hearings or votes make its presence known. The President clearly – indisputably – has the power to nominate a candidate for the court, and the Constitution equally empowers the Senate to chooses whether or not to confirm the president’s choice. That is the extent of the Senate’s “duty.” Adam J. White expands on this point well in his take on the subject, delving into the history and precedents set by the Framers of the Constitution:
The Framers expressly based the Constitution’s “advice and consent” model on the approach used in Massachusetts, under the State’s Constitution of 1780. And, looking through years of archived nomination files, I found myriad examples of nominations made by the governor that received no up-or-down vote from the “Privy Council,” the body that provided constitutional advice and consent. But the best evidence of the Senate’s power not to vote on nominations is found in the Framers’ rejection of an alternative approach to appointments. As an alternative to the “advice and consent” model, James Madison proposed a discretionary Senate veto. Under that plan, a president’s nominees would automatically be appointed unless the Senate mustered a majority vote against that nomination within a fixed number of days.
The Supreme Court’s huge role in reshaping society makes it vitally important that the Justice who fills the void left by Scalia’s death not only be grounded in and uphold the same principles and values Scalia evinced, but literally be willing to be a warrior for justice; someone who will have unwavering dedication to the Constitution, and reinforce the originalist, constitutionalist views of Justices Thomas and Alito. That would be the best way to honor the life and legacy of the greatest Supreme Court Justice of the last 50 years.