Almost immediately after news of Justice Antonin Scalia’s death broke, Senate Majority Leader Mitch McConnell (R-KY) proclaimed that “this vacancy should not be filled until we have a new President.” And, with rare exception, this has been the Senate GOP’s message since Scalia’s seat became vacant — let the election happen first, and whoever wins that election gets to pick the next justice.
Nevertheless, in a Monday interview with a Philadelphia radio host, Sen. John McCain (R-AZ) admitted that Republicans will continue to block anyone the next president nominates to the Supreme Court — at least if that president is Hillary Clinton.
“I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up.”
“The strongest argument I can make” for why Pennsylvania voters should re-elect Republican Sen. Pat Toomey, is that a Republican Senate can “ensure that there are not three places on the United States Supreme Court that will change this country for decades.”
After host Dom Giordano pressed McCain on how he can promise that Republicans will block Clinton’s appointees when they did not block President Obama’s appointment of Justice Sonia Sotomayor, McCain noted that a handful of Republicans did support Sotomayor. This time around, however, he says things will be different.
“I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up,” McCain told Giordano. He added that “this is why we need the majority.
The tactic that McCain is proposing is nothing less than an existential threat to the Supreme Court itself. Unlike elected officials, who wield legitimate power because they were elected by the people, federal judges cannot claim democratic legitimacy. Their legitimacy flows from their obedience to a written text and the knowledge that they were selected in a fair and constitutional process.
McCain, however, is effectively proposing that only Republicans should be allowed to choose Supreme Court justices. And, as McCain notes, two or even three more vacancies could open up on the Court during the next president’s term, as three current justices are quite elderly.
If those justices are replaced through the same legitimate process that every other justice has endured, then the Supreme Court retains the same legitimacy that it enjoyed before Scalia’s seat became vacant. But imagine a world where Scalia’s seat — and two others — remain vacant for five years because a Republican Senate refuses to confirm anyone named by the president.
Then imagine that all three of these seats are filled five or nine or thirteen years from today, when Republicans finally manage to gain control of both the White House and the Senate.
What reason would Democratic governors have to obey the decisions of such a court? What reason, for that matter, would a future Democratic president have to obey that court’s decisions? It’s one thing to ask the people’s elected leaders to bow to the decisions of unelected officials chosen in a fair process. It’s another thing altogether to ask them to bend to the will of a rigged bench.
McCain, in other words, is threatening a very dark future if Republicans keep their Senate majority. He is threatening to intentionally trigger a constitutional crisis where a bench stripped of its legitimate authority tempts defiance from elected officials who’ve been empowered by the electorate to govern.
That is a dangerous future because the judiciary, for all of its many flaws, plays an essential role in ensuring that elected officials respect the rule of law and the rights enshrined in the Constitution. But it can only play that role if the Senate does not rob it of its rightful claim to authority.
UPDATE: Hours after McCain’s comments kicked off a firestorm online, his spokesperson walked back his comments in a statement first obtained by Talking Points Memo:
“Senator McCain believes you can only judge people by their record and Hillary Clinton has a clear record of supporting liberal judicial nominees,” communications director Rachael Dean told TPM in a statement. “That being said, Senator McCain will, of course, thoroughly examine the record of any Supreme Court nominee put before the Senate and vote for or against that individual based on their qualifications as he has done throughout his career.”