It’s not the Scalia Memorial Seat

Conor Friedersdorf at the Atlantic on the senators who are vowing to refuse to do their job:

Is it legitimate for the Republican-controlled Senate to refrain from confirming a replacement for the late Supreme Court justice until a new president is elected, as Ted Cruz, Marco Rubio, Ben Carson and others on the right have urged? Or does the Senate have an obligation to approve a qualified nominee put forth by President Obama, as many on the left argued as soon as news of the death broke?

No, and yes.

He quotes Ted Cruz tweeting a ridiculous claim:

Justice Scalia was an American hero. We owe it to him, & the Nation, for the Senate to ensure that the next President names his replacement.

What? What does that even mean? How does the Senate “owe it” to a deceased justice to refuse to consider a replacement until there’s a new election? Once the justice is removed from the court by cessation of life, that thing on the court is a vacancy, not an inherited estate. It’s not the Scalia Memorial Seat on the court. It’s a vacancy. It doesn’t have any predetermined character. It’s a vacancy. An empty spot.

But the Senate does have an obligation to fulfill its “advice and consent” obligation. Says the Constitution, the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court…” A preemptive rejection of any possible Supreme Court appointment is self-evidently in conflict with that obligation.

And these people are sworn to uphold the Constitution you know. It goes with the job. They have to swear that oath on their first day.

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