The death of Justice Antonin Scalia has ignited a political firestorm over the future of the U.S. Supreme Court. Within hours of Scalia's demise, President Barack Obama took to the airwaves, vowing "to nominate a successor in due time." The GOP-controlled Senate, Obama insisted, must then "fulfill its responsibility to give that person a fair hearing and a timely vote."
Does the Senate actually have any such responsibility? Not according to a 1992 speech by then-Senate Judiciary Committee Chairman Joseph Biden (D-Del.), who maintained that the president should "not name a nominee until after the November election is completed." In Biden's view, if a Supreme Court vacancy occurs "once the political season is underway, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over." According to Biden, if a president "presses an election year nomination, the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until ever—until after the political season is over." Take a wild guess about what political party happened to control the White House when Sen. Biden made those remarks.
Not surprisingly, Biden is now scrambling to disown his previous statements and undo the damage he has done to the Obama administration's case in the current SCOTUS showdown. To make matters worse for the Obama White House, Biden is not the only prominent Democrat whose tune has changed. In 2006 a virtual who's who of leading Senate Democrats, including Biden, Harry Reid, John Kerry, Hillary Clinton, and even Barack Obama himself, all voted to filibuster Republican Supreme Court nominee Samuel Alito in a failed attempt to delay and derail Alito's confirmation. Not exactly a shining example of what Obama now refers to as a "fair hearing and a timely vote."
To be sure, the Republican Party also has some consistency problems of its own in this area. "The Senate has a Constitutional obligation to vote up or down on a President's judicial nominees," declared President George W. Bush in 2004 (a position now mirrored by President Obama). Bush's statement came in response to the successful Democratic filibuster of some 20 of his judicial nominees, including individuals whose names were first submitted by Bush to the Senate back in 2001.
Constitutionally speaking, President Bush and President Obama are both wrong. Yes, the Constitution says the president "shall nominate…judges of the Supreme Court." And yes, Obama has every right—and every reason—to try and replace Scalia with a justice of his own choosing. But any such nomination is contingent on the "advice and consent" of the Senate. And whether the president likes it or not, the Senate is no mere rubber stamp. If a majority of Senators possess the political will to block, delay, or reject the president's Supreme Court nominee, then those Senators have the constitutional right to do so.