This is just the beginning of what is likely to be a major campaign issue this year.
Yesterday, Senator Pat Toomey became one of the last Republicans to state his belief that the next President, and not President Barack Obama, should get to appoint Justice Antonin Scalia’s replacement.
Toomey’s full statement is presented below:
“I have long stated my belief that objective qualifications and adherence to the rule of law should matter more than ideology when it comes to judicial appointments. I have acted accordingly, working closely with Senator Bob Casey on filling 16 vacancies on the federal bench in Pennsylvania and supporting numerous appointments by President Obama, including his appointment of Justice Sonia Sotomayor to the Supreme Court.
“The current vacancy on the Supreme Court, following the tragic death of Justice Antonin Scalia, however, presents an unusual context. In the final year of a presidency, it is common for vacancies that arise on the Supreme Court to await the outcome of the next election. Given that we are already well into the presidential election process and that the Supreme Court appointment is for a lifetime, it makes sense to give the American people a more direct say in this critical decision. The next Court appointment should be made by the newly-elected president. If that new president is not a member of my party, I will take the same objective non-partisan approach to that nominee as I have always done.
“President Obama insists that he will nominate someone for the Court. He certainly has the authority to do so. But let’s be clear – his nominee will be rejected by the Senate. In addition to the normally high level of scrutiny accorded to a Supreme Court nominee, this nominee would have to pass an additional level of scrutiny, which is the question of whether he or she ought to receive a lifetime appointment this year, when one could be made with a broad public stamp of approval less than a year later. That is a standard no nominee is likely to be able to meet.
“It has been less than 72 hours since Justice Scalia’s passing. There has already been too much politicking around the issue of his replacement. This decision should not be rushed, and it should not be made amid the clamoring of a presidential election season. We should honor Justice Scalia’s legacy, and we should put off a decision on his replacement until the newly-elected president can make his or her choice.”
Before Toomey had made his feelings clear, Braddock Mayor John Fetterman sought to put the junior Senator on the spot.
“Sen. Pat Toomey, who do you work for: the citizens of Pennsylvania or Ted Cruz and other extreme GOP obstructionists?,” Fetterman stated. “The self-serving negligence we are seeing from the GOP is the reason why everyone hates Congress, and is simply disrespectful to the American people. So which is it, Sen. Toomey: will you do your job, or choose partisanship over patriotism?”
Meanwhile, former Chief of Staff to Governor Wolf Katie McGinty slammed Toomey for “doubling down on obstructionism”.
“Toomey’s partisan decision makes it clear he wants a Supreme Court that would take away a woman’s right to choose, continue an assault on women’s health care, attack and destroy health care reform and continue to allow dark money in politics,” McGinty said. “We need a Senator who does the job for us, not partisan Washington insiders.”
Finally, former Congressman Joe Sestak made his case for not allowing the seat to remain vacant for at least a year.
“William Penn said that ‘To delay Justice is Injustice.’ It is time for Pat Toomey to fulfill his duty to the people of Pennsylvania and vow to quickly consider a new Supreme Court Justice rather than marching lockstep with partisan obstructionists in Washington, D.C.”
“With so many pressing issues before the Court like the Voting Rights Act, protecting women’s right to choose, reversing Citizens’ United and affirming the need to regulate polluters, the Senate must act swiftly to consider President Obama’s eventual nominee to the court,” Sestak continued.
“I also firmly believe that nominating a justice with a legal education outside the Ivy League – which no present Justice has – will bring a voice to the Court in tune with the diversity of experiences of the American people and give them all a stronger voice on the Court,” he added.
“Finally, I hope that Justice Scalia’s replacement will follow the model he set for maintaining positive, working relationships with his colleagues despite deep philosophical differences – which is all too lacking in both parties in Washington, D.C.”
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26 Responses
Note I sent to both Senators from Pennsylvania
Senator Casey and Senator Toomey,
I am seeing commercials on television paid for by the Judicial Crisis Network. They are asking that I call Senator Toomey to “let the people decide”. Well, the people did decide- Barak Obama was elected president of the United States in 2012 for a four year term. I believe that it is his job to nominate a replacement for the Supreme Court when a vacancy occurs, no matter the judge he is replacing. As my senators from the state of Pennsylvania, you are elected to a full six year term, and I believe that I should expect you work on behalf of this states citizens for your full term. It is your job to process his nomination, vote on the nomination and fill the vacancy to the supreme court. You may or may not like President Obama’s choice for the Supreme Court but, if that person is qualified under the standards of our constitution, then you should give that person the proper vote. You should not be placing a vote based on what political action organization is telling you to do.
My stand on this situation is clear and will be watching what happens in the next few months. My vote in the November will be based on the out come of the President’s nomination to the Supreme Court and if they are confirmed.
Thank-You
XXXXXXXXX- Citizen of the State of Pennsylvania.
The idea that Senator Toomey would ask any President to wait until there is a new President in the next term is disgusting. It is his lack of understanding of the Constitution or his lack of respect for the current President?
My analysis of his Republican peers in the Senate demonstrate that is it the blatant lack of respect for Barack Obama and that will not be tolerated. It is the straw that is going to break the camel’s back – meaning Senator Toomey will see a groundswell of activity to unseat him if he pursues this unthoughtful logic.
Someone really should call out Toomey for his lie about it being “common for vacancies that arise on the Supreme Court to await the outcome of the next election.” The fact is that there have been only a handful of cases since 1900 where a vacancy arose in an election year — and in all those cases, a replacement was approved before the next Presidential term.
Come on people, we all know the score here. SCOTUS appointments always have and always will be political. I realize for those of you on the political left this is a great opportunity. Thankfully for those of us on the political right, the people installed a Republican senate to “obstruct” the liberal policies of President Obama (Yes, Pam, that’s their job). There is no way they are going to allow Obama to dramatically change the direction of the court be confirming a 5th liberal justice.
This has nothing to do with the Constitution but has everything to do with obstructionism. I’ve never seen this level of outright disregard for protocol and precedence in my 55 years. I don’t understand how anyone can doubt that a Presidential election has the possible consequence of a Supreme Court nomination. It’s one of the most important functions of the Presidency. Each time any of us vote for president, we are also giving him or her the power to affect the Supreme Court. My vote is always based partially on that important function of the president. For anyone to say now that we should wait for the people to have a say are being disingenuous.
David – Obama is obliged to nominate replacements for deceased/retiring justices because the Constitution specifies as such. “The President …. shall nominate …”
Conversely, there is zero constitutional or statutory provision to support your claim that the Senate has an *obligation* to do anything, much less give any nominee a hearing and vote. The Senate Judiciary Committee holds hearings at its discretion. The Senate takes a vote at its discretion.
If you want to unveil the parade of horribles (e.g., what if the Senate permanently stopped consenting to replacement justices)…it is my pleasure to inform you that the Supreme Court will (hopefully) not whittle away to 0 justices and our system of government will (hopefully) not collapse. We live in a democracy – the People pick the Senate.
Notwithstanding the Left’s hysterical reaction, the Senate appears to have made a decision that is completely consistent with the Constitution, all federal statutes and our democratic principles. Where a vacancy on the Supreme Court has occurred under a lame duck president in a presidential election year, the Senate has apparently taken the position that it will consent only to a nominee put forth by the next president.
If that position is so repulsive, impractical, belongs in a parade of horribles, etc…then the People will change the Senate. If not, then maybe the Republicans keep the Senate. To that end, I find it curious that so many partisan Leftists are suddenly giving Senator Toomey campaign advice.
The lady doth protest too much, methinks.
Reasonable Rep-
Obama was elected for 4 years. All 9 justices could die during his term and he could nominate replacements for all 9 of them.
2/3 of the Senate have 3+ years left in their terms.
They have an obligation to give any nominee a fair hearing and a vote. It’s their job. They can vote against a nominee they find unqualified. Justice Thomas has set the bar so low, than anyone with a pulse would be qualified.
Re: Kennedy – Had (1) Scalia died last June, (2) Republicans waited until October to vote down Obama’s first nominee, (3) Conservatives shamed Obama’s second nominee into withdrawing from consideration in November, and (4) Obama put forth his only third nominee three days later, well before the first presidential primary votes…
…then I fully admit that a Republican argument to postpone the appointment of Scalia’s appointment until after the general election would be much weaker. Alas, that sequence of events obviously is not what happened this time around, nor does it resemble what happened. Hence, in my opinion, the Kennedy confirmation in ’88 does not itself logically render the Republicans in ’16 as being in conflict with past practice or accepted precedent.
Re: Cardozo – While I was previously aware of his influence/fame from his NY days before his SCOTUS run (http://www.youtube.com/watch?v=mDEbTudkjhc), I didn’t realize the degree of *national* consensus that led to his nomination! Imagine today…the entire faculty of Chicago…the deans of Harvard, Yale and Columbia…a sitting Justice (who offered to resign his seat to make room)…a bipartisan delegation of Congress…all approaching the sitting President and urging him to nominate the same man. Hard to believe.
Sorry Reasonable Rep, but your case is pretty thin. Kennedy was nominated on November 11, 1987, less than a year before the 1988 election, and he was confirmed the following February, when primaries were underway. Even under these made up rules, saying Kennedy is inapposite just doesn’t pass the smell test.
I mention Cardozo because he was a nominee with impeccable credentials, historically more influential on the NY bench than the SCOTUS judges at the time, and he was a consensus choice designed to appeal to the Democrats of that time. It’s not like partisanship magically appeared after 1940, and the court was heavily politicized even back before FDR.
Somehow I missed Sestak’s idiotic response. What an embarrassment.
Proceeding in order, first, how does one vacancy on the nine-member Supreme Court constitute an injustice? And if it does, at what point does the vacancy become an injustice? Immediately after Justice Scalia took his last breath? 10 minutes later? 10 days later? 10 months later? How have the people served by multi-member courts in America and around the world managed to survive and endure without an automatic successor on deck at all times?
Second, he cites “pressing issues” before the Court before going 0 for 4 and failing to describe a single actual legal issue. “[A]ffirming the need to regulate polluters?” I’m actually embarrassed for him. For those who may not know, that is in no sense an “issue.” It is the Court’s job to consider the regulation and determine whether it’s permissible under (i.e., not in violation of) the relevant statutory and constitutional provisions. That a former Congressman and U.S. Senate candidate perceives the judicial role as confirming the partisan policy merits of a governmental regulation is, to reiterate, embarrassing.
Lastly, this clown “firmly believe[s] that nominating a justice with a legal education outside the Ivy League . . . will bring a voice to the Court in tune with the diversity of experiences of the American people and give them all a stronger voice on the Court.”
I’ll leave it to Justice Scalia to respond to that line of excrement:
“Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant. Not surprisingly then, the Federal Judiciary is hardly a cross-section of America . . . . The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges . . .”
PA Expat – Again…Kennedy’s nomination occurred in a non-election year BEFORE even a single presidential primary had taken place. And his nomination didn’t start the process, but rather represented the an end of the process that began in June of ’87 before being strung out by the Left. His unanimous confirmation amounted to a mere formality, as the Left had finally agreed to comprise after jettisoning the two prior nominations.
In that context, the parallel that Democrats are trying to draw between the confirmation of Kennedy in ’88 and a confirmation of a prospective Obama appointee in ’16 is unconvincing.
That we have to go back to 1932 for your alternative argument is very telling. Unlike today, in that era a Supreme Court nomination was not of great public interest and not a partisan campaign issue. Reason being, for starters, this was before FDR politicized the Court by threatening to expand it in response to the Court simply doing its job in applying the law and concluding that some – not all – of his New Deal programs violated provisions of the Constitution. Also, the Left had yet to fully conjure up and apply in practice the notion of a “living” constitution, under which interpretations of a legal text can depend on what political outcomes are desired.
“Kennedy is a non-starter.” He was nominated less than a year before the 1988 election, and this when Reagan was waning and the Dems had retaken the senate in 1986. I also recall someone called Benjamin Cardozo who was nominated in 1932 when Hoover’s political capital was lower than any incumbent president’s in recent memory.
Republicans started pissing on this process before Scalia’s still-warm corpse even reached the funeral home, because they know Obama is going to nominate someone with an impeccable record. They know they’ll have no ammunition against the nominee besides shrieking and mudslinging
As a factual matter, it is absolutely true that a Supreme Court justice has not been nominated and confirmed during a presidential election year since 1940. It is absolutely true that the Senate in 1968 declined to consider Abe Fortas, who was nominated by President Johnson, a lame duck president on his way out the door.
But never mind that. Let’s assume for sake of argument that none of this precedent existed. Solely consider the following – Republican senators have taken the simple position that, for better or worse, the Supreme Court is currently politicized to such a degree that the People have a measurably high interest in who will replace Justice Scalia. On that basis, rather than consent to the appointment of an election-year nominee put forth by President Obama, the Republicans in the Senate intend to instead allow the People to elect their next president following a campaign in which the Supreme Court vacancy will be an issue, and thereafter to consider that president’s Supreme Court nominee.
Rather than react hysterically with false accusations and flawed interpretations of the Constitution…how about a simple, cogent and logical counter-argument from the Left in response the Republican’s position? I’m still waiting.
Sen. Toomey and Senate Republicans are manufacturing this “precedent” out of whole cloth. Let’s call it what it is: a blatant lie based solely on their wishful thinking. Let’s hope the People don’t buy it, regardless of how quickly and opportunistically and uniformly they created it and repeat it.
Reasonable Rep-
1) Schumer is an ass
2) His statement was pure posturing, as there was no actual vacancy
3) He doesn’t speak for all Democrats
4) He’s not running for election in PA
I’m sure Senator Toomey is very worried about losing the support of the commenters on PoliticsPA, who were behind him 100% but for this one issue.
A quick primer helps focus the conversation:
http://www.scotusblog.com/2016/02/supreme-court-vacancies-in-presidential-election-years/#more-238240
“The President …. shall nominate, and … by and with the advice and consent of the Senate, shall appoint … Judges of the Supreme Court.” U.S. Const. art. II, § 2.
Among the hysterics emanating from the left is the accusation that the Senate will somehow violate the Constitution by refusing to consider a prospective nominee over the next 10 months. Obviously this is not true. The Senate cannot be forced to consider any nominee today, tomorrow or 10 years from now. Whatever you think of the wisdom underlying the decision, it is entirely lawful for the Senate to withhold its consent.
Democrats are certainly entitled to make this a campaign issue, but thus far their faux exasperation is pretty unconvincing.
First, the Kennedy confirmation in ’88 is a non-starter. He was nominated in ’87 well before the Presidential primaries had started. Further, the only reason that the nomination even occurred that late was the result of the Left’s efforts to sabotage TWO separate nominations in the wake of Justice Powell’s announced retirement way back in June of ’87.
Second, the last time around when the shoe was on the other foot, you had Chuck Schumer – an entire EIGHTEEN MONTHS before the end of the Bush presidency – essentially calling for a boycott of any Bush nominees to the Supreme Court. Fast forward to this week, after he gets called out for his hypocrisy in attacking Mitch McConnell, he’s trying to backtrack by rationalizing that he would have at least given the Bush nominee a hearing. Then and now, what would be the point of such a pointless exercise where the outcome is predetermined?
For all the posters who didn’t believe my admonition a few days ago due to unabashed love or hatred of Kathleen Kane, pay attention.
http://www.witf.org/news/2016/02/kathleen-kane-to-discuss-future-of-atttorney-generals-office.php
Best response I have seen is the FB post with Obama photoshopped in to Supreme Court group photo, when Dem wins White House and makes the appointment that GOP has delayed for a year.
Oops… forgot to post the link to Senator Toomey’s facebook page: https://www.facebook.com/senatortoomey/?fref=ts
I suggest you take a look at Senator Toomey’s facebook page and the post that you quote in your story. At this time (10:45am on Tuesday morning), there are over 500 comments and I would estimate that at least 90% of them oppose his position.
This issue is clear-cut and will have dire consequences for Mr. Toomey’s re-election effort.
“In the final year of a presidency, it is common for vacancies that arise on the Supreme Court to await the outcome of the next election.”
Absolutely not true.
There is no “additional level of scrutiny”. See: US Constitution.
One of Obama’s picks near the top of the short list was approved by the Senate for a federal bench 97-0. Sounds like he already passed quite a bit of scrutiny.
Toomey can’t help himself. Wing nuts (both R & D)have polarized the American political landscape. I find it laughable that constitution purists like Toomey, Cruz and Rubio interpret constitutional issues only to their liking. Toomey and all the wing nuts (R & D) have to go they are unfit to hold public office.
Toomey’s initial premise, which he bases everything on, is incorrect. ” In the final year of a presidency, it is common for vacancies that arise on the Supreme Court to await the outcome of the next election.” This isn’t true, and if you don’t believe me, you can verify on Google that Kennedy was confirmed during Reagan’s final year. This being verifyably false, the rest of his argument collapses as well.
Critical mistake by Toomey that will haunt him right through November. Whoever wins the Democratic primary will be the next Senator.