The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
President Obama is likely to nominate someone to fill the Supreme Court vacancy created by Justice Antonin Scalia's death any day now. In all likelihood, the president will nominate a highly qualified individual who shares the president's liberal judicial philosophy. Indeed, the president said as much here.
Senate Republicans insist that they will not consider a nominee to replace Scalia on the court before the November election. Their position is #NoHearingsNoVotes. They maintain that the president should not be able to make an appointment that will dramatically shift the orientation of the court in an election year. If the Supreme Court is to lurch left, Senate Republicans argue, it should not happen without voter assent. (Implicit, but unstated, in this position is that should the voters elect a Democratic president and Democratic Senate, the new president should have a free hand in choosing Scalia's successor.)
If #NoHearingsNoVotes is, indeed, Senate Republicans' position with regard to a Supreme Court nomination, then Senate Republicans should refrain from criticizing—let alone demonizing or "Borking"—any Supreme Court nominee. The same holds true for conservative activist groups that are supporting the Senate Republican position. If #NoHearingsNoVotes is the position, the merits of any given nominee are irrelevant, and there is no justification for attacking the reputation of whomever the president nominates—and certainly no justification for tarring potential nominees because they once represented unsavory clients. We already have too much of that.
In sum, if #NoHearingsNoVotes, then #NoBorking.