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Why GOP should not block Obama nominee

President Obama nominated Merrick B. Garland to the Supreme Court earlier today after more than a month of acrimony about when that seat should be filled. Almost immediately after news surfaced of Justice Antonin Scalia's death, Senate Majority Leader Mitch McConnell announced that, "this vacancy should not be filled until we have a new President."

Over the past month that sentiment was echoed by leading Republicans on the Senate Judiciary Committee, as well as by current and former Republican presidential candidates – all of whom support withholding a confirmation hearing for President Obama's prospective nominee regardless of that person's qualifications or ideology.

Conservatives should abhor this response. For years, Justice Scalia challenged the notion that the Constitution is a living document that can be judicially molded to changing times or the whims of the majority. Rather, he explained that "our manner of interpreting the Constitution is to begin with the text, and to give that text the meaning that it bore when it was adopted by the people."

Here, the text of the Constitution's Appointments Clause is quite clear: "the President ...shall nominate, and by and with the Advice and Consent of the Senate, shall appoint… Judges of the supreme Court...." The word "shall" is operative in providing "the President" with the power to nominate and appoint. "The President" in this case is President Obama and not some future President as Republican leaders would have it.

So when Senator Rubio, for example, says that "[w]ithin the last year of the last few months of the president's term, we should not be appointing Supreme Court justices," or when Senator Lisa Murkowski urges President Obama to "allow his successor to select the next Supreme Court justice" due to "the timing of this vacancy, in the middle of an election," conservatives should ask: Where is that limitation found in the Constitution? Justice Scalia himself opposed this very type of atextual revisionism.

Axtextualism has even veered into plain obfuscation. Republican Judiciary Committee members have explained that "[t]he President may nominate judges of the Supreme Court." That is plainly wrong. The President's power to nominate Supreme Court justices is not only absolute, but mandatory as the Constitution's use of the word "shall" makes clear.

They further argue, as Senator Hatch has, that "[t]he Constitution does not tell . . . the Senate how to exercise their power." That misses the point. While the Constitution does not say how the Senate shall exercise its power, it does say that the Senate shall exercise its power in some manner after the President submits its nominee for consideration. Refusing to provide some form of "advice" is not an option that the Constitution provides for.

Republican leaders have also resorted to history as a basis to withhold a confirmation hearing for any person that President Obama nominates. In a letter by Senate Judiciary Committee Republicans to Senator McConnell, they justified their refusal because "[n]ot since 1932 has the Senate confirmed in a presidential election year a Supreme Court nominee to a vacancy arising in that year. And it is necessary to go even further back — to 1888 — in order to find an election year nominee who was nominated and confirmed under divided government, as we have now."

Such historical cherry-picking is fraught with the same weakness as that used by liberals who have argued that since 1900 six justices have been confirmed during presidential election years. Justice Scalia explained the fallacy: "The historical practice of the political branches is, of course, irrelevant when the Constitution is clear."

Republican leaders have further tried to cloak their decision under the statements and actions of Democratic leaders during prior nomination disputes. Senator Charles Schumer, for example, stated in 2007 that "we cannot afford to see Justice Stevens replaced by another Roberts, or Justice Ginsburg by another Alito" and thus the Senate should not confirm a nominee "except in exceptional circumstances."

Justice Scalia would have scoffed at such a justification because these are politicians after all. He recognized as much in explaining that what members of Congress think is of limited relevance: "I have often criticized the Court's use of legislative history because it lends itself to a kind of ventriloquism. The Congressional Record or committee reports are used to make words appear to come from Congress's mouth which were spoken or written by others (individual Members of Congress, congressional aides, or even enterprising lobbyists)."

Perhaps most disconcerting is that Republican leaders advocate upsetting the intricate balance that the Framers of our Constitution created for judicial nominations. The Constitution vests advice and consent of nominees with the Senate, which typically causes presidents to exercise self-restraint, particularly when that body is controlled by the opposition party. Likewise, Senators are accountable to the public for their consent or rejection of nominees.

That balance appears to have worked well here as President Obama nominated Merrick Garland, a moderate judge who has served on the United States Court of Appeals for the District of Columbia since 1997. Senator Hatch has even referred to Judge Garland as a "consensus nominee" when considered for a prior vacancy in 2010. The question now is whether Republican leaders will have have us abandon the Constitution's well calibrated balance for appointing justices by having the Senate entirely refuse to exercise its constitutional duty to consider Judge Garland.

Justice Scalia was correct in warning that "[c]onservatives are willing to grow the Constitution to cover their favorite causes just as liberals are . . ." Lets just hope that keeping a conservative majority on the Supreme Court before is not one of those causes because doing so would undermine conservatism itself.

Commentary by Michael Hahn, an attorney at Lowenstein Sandler LLP and a frequent commentator on legal and policy issues. He has expertise in both competition and constitutional issues and has published several articles in these areas. Mr. Hahn frequently represents corporate clients, trade associations and various not-for-profit organizations.

The views expressed herein are those of the author only and not necessarily those of Lowenstein Sandler LLP.

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