Follow @csteditorialsThe U.S. Supreme Court nomination process is broken, and no one yet knows how — or whether — it will be fixed.
Senate Republicans in recent weeks have begun signaling they would be just fine with leaving the process broken — and the Court short-handed — indefinitely. We urge you to vote accordingly on Tuesday. The Senate’s Republican majority, of which Sen. Mark Kirk of Illinois is a member, is demonstrating once again that it cannot be trusted to put governance above politics.
In March, President Barack Obama appointed Merrick Garland to a Court vacancy, but Senate Republicans, breaking with longstanding tradition, refused to hold a hearing. Instead, they said they would wait until after Nov. 8 on the chance that a Republican would be elected president.
Follow @csteditorialsNow, though, some in the GOP are sending signals they will refuse to fill vacancies for another four years if Hillary Clinton wins the election. Which raises a question: Were they never taught that our nation has three co-equal branches of government — and that the Supreme Court is never to be relegated to junior status?
For more than two centuries, senators have ratified court nominees as long as the president put forward someone who was moderate and qualified. It’s a process that encourages presidents to nominate middle-of-the-road jurists.
Sen. John McCain, R-Ariz., said on a radio talk show, “I promise you that we will be united against any Supreme Court nominee [Clinton] would put up.” Sen. Richard Burr, R-N.C., said, “If Hillary becomes president, I am going to do everything I can do to make sure four years from now, we still got an opening on the Supreme Court.”
The conservative group Heritage Action last week called on Senate Republicans not to fill the existing Supreme Court vacancy if Clinton is elected president.
Now on the docket: the case of Longstanding Tradition v. Unending Partisan Warfare.
If other senators adopt the philosophy of McCain and Burr, no new justice will take a seat on the Supreme Court until both the president and Senate majority are from the same party, something that would encourage the nomination of justices further from the center politically.
Even if the president and majority are from the same party, the Senate minority — provided it has at least 40 voters — could still filibuster any appointment. But that would likely lead the majority to trigger the “nuclear option,” a revision in Senate rules that eliminates the right of the minority to filibuster Supreme Court nominees.
Once the Senate starts down the road toward hyper-partisanship on the court, no one can be certain where it will wind up. Should Donald Trump be elected, it will be hard to persuade Democrats it is valid for him to make an appointment that was denied to Obama.
For the high court’s edicts to be respected, the court relies on the public perception that its members are fairly chosen and that it follows the precedents handed down by prior courts. Steeping it in partisanship inevitably will erode its standing.
The Republicans can’t complain they haven’t had their share of appointments. The party has made 72 percent of the Supreme Court appointments since 1968, even though it has held the White House just 58 percent of the time. The idea of a Democratic president filling a vacancy shouldn’t give the GOP apoplexy.
What everyone should be focusing on is steering the court back to a nonpolitical middle ground, from which it can command support and respect.