Editorial: Senate needs to think and vote
Unfortunately, we weren't shocked that Sen. Pat Toomey went along with Republican leadership in saying the next president should appoint a successor to Supreme Court Justice Antonin Scalia.
Their take is that current President Barack Obama shouldn't even both to nominate anyone for the seat, with the reasoning that the Senate would be weighing both a nominee's qualifications and how the new justice would swing the balance of the court so soon before Obama leaves office.
“It’s very unlikely that any nominee, however well qualified, could reach the level that would be necessary to satisfy both sets of criteria,” Toomey told The Associated Press. “And for that reason, it might be just as well not to have a hearing that would, sort of, might mislead the American people into thinking that this is just about the qualifications of the candidate, because it’s bigger than that.”
At least they're admitting that the latest round of brattiness from the Republican senators isn't about a potential nominee's qualifications. It's all about politics. And that's a bad reason to hamstring the highest court in the country for a year.
It's Obama's job to name a nominee for the vacancy on the court. It says so right in the Constitution: "(The president) shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the supreme Court." If Obama doesn't submit a name, someone will accuse him of shirking his duties.
The longest the court has carried on with only eight members is 391 days, when the Senate rejected President Richard Nixon's first two nominees before appointing Harry Blackmun for the vacancy. The longest it has taken for a nominee to receive a vote, was 125 days (Louis Brandeis, 1916, after 19 public hearings).
From the day Scalia died until Jan. 20, 2017, when the next president takes office, there are 340 days. Current members of the court had an average of 71 days between being named as the nominee and being confirmed. That puts a new nominee in the court, aptly, on April Fool's Day, April 1, 2017.
Meanwhile, the Supreme Court is left to linger. According to bloomburgview.com, the modern court hands down 5-4 decisions 20 percent of the time. Without a tie-breaker, Supreme Court decisions are meaningless. The decision of a lower court stands.
Yes, we are deeply into a presidential campaign season that seems to have begun the day after the previous election. And yes, it has been 80 years since a Supreme Court nominee was nominated and confirmed during a presidential election year (Benjamin Cardozo, 1932). But the country is in no state to have a court that can't make the crucial decisions for more than a year.
So we would like to throw a name into the ring that should please everyone in some way and no one completely: Judge John E. Jones III of the U.S. District Court for the Middle District of Pennsylvania.
Jones, 60, was appointed to the bench in 2002 by President George W. Bush and was unanimously confirmed at that time. He has written two decisions of note: Kitzmiller vs. Dover and Whitewood vs. Wolf.
The Kitzmiller decision in 2005 stopped the Dover Area school board from requiring that creationism thinly disguised as "intelligent design" be taught in the classroom. In his conclusion, Judge Jones wrote: "In making this determination, we have addressed the seminal question of whether ID is science. We have concluded that it is not, and moreover that ID cannot uncouple itself from its creationist, and thus religious, antecedents. ... The citizens of the Dover area were poorly served by the members of the Board who voted for the ID Policy."
In Whitewood vs. Wolf, Jones' 2014 decision struck down Pennsylvania's ban on same-sex marriage. His ruling compared Pennsylvania's ban on same-sex marriage to school segregation laws overturned by the U.S. Supreme Court's 1954 landmark Brown vs. Board of Education decision.
"We are a better people than what these laws represent, and it is time to discard them into the ash heap of history," he wrote.
The Senate leadership should take a look at those words and, even without considering Judge Jones, consider their meaning. We are a better people than this squabble represents. Let history move on unimpeded.