Let the next president choose the new Supreme Court justice
Published February 28, 2016
America lost a stalwart advocate for our rule of law system with the recent death of Supreme Court Justice Antonin Scalia, and we now face a tremendous challenge to maintain balance on the court. He was one of America's most revered and admired justices - a strong, articulate defender of the Constitution in the face of ever-increasing judicial activism.
The judicial branch was set up to interpret and apply the law; Yet, today we see judges legislating from the bench, rather than interpreting the Constitution. It is the job of the legislature to write or re-write laws, and this duty is slowly being usurped by the judicial and executive branches. And, as the Supreme Court is now configured, the remaining lawmaking power of the legislature is hanging by a thread.
Let's be clear about a couple things: The president does have the right to nominate anyone he wishes for this vacancy; He may very well do exactly that. The Senate, however, is under no obligation legally, or constitutionally, to act. While President Barack Obama was re-elected in 2012, the current Republican Senate majority was elected in 2014. Both represent the will of the people.
Year after year, the politicization of judicial nominees has grown. Some say this escalation started in 1987 with President Ronald Reagan's nomination (and subsequent rejection) of Robert Bork to the highest court. I tend to agree with that assessment. Since then, both parties have played games, thrown up procedural roadblocks and demonized qualified men and women. Democrats led a blockade of nominees in the 2000s, and Republicans have been slow to confirm many of Obama's nominees. No matter who started it (and I believe Senate Democrats have been the biggest offenders), there is plenty of blame to go around. A hearing and vote in the shadows of a presidential election would only further politicize the court, and it would be unfair to any nominee. Even Vice President Joe Biden agrees with me.
Our country is at a critical juncture. Many important cases have yet to be argued before the court this session, and some have already had their oral arguments and decisions are pending. On high-profile cases, recent decisions have tended to be 5-4. In fact just this month, the Supreme Court, on a 5-4 vote, stayed Obama's Clean Power Plan - a plan that would devastate Eastern and Southeastern Ohio coal families. Scalia was the fifth vote. That case is now up in the air, and will likely be headed back to the high court.
This year alone, the Supreme Court has heard, or has agreed to hear, cases involving forced union dues, abortion restrictions, the constitutionality of considering race in college admissions, the president's deferred deportations of unauthorized immigrants (commonly referred to as amnesty) and religious freedom issues. Scalia also was the fifth vote (in addition to writing the majority opinion) to uphold key 2nd Amendment rights in the 2008 Heller case. It was the first Supreme Court case to directly decide whether the 2nd Amendment protects an individual right to keep and bear arms for self-defense. Current Justice Ruth Bader Ginsberg has stated she hopes a "future, wiser" Supreme Court overturns Heller. She is now one appointment away from her wish.
These are just a few examples of the very serious decisions that the Supreme Court will soon make. The stakes could not be higher.
Some prominent national political figures are saying "delay, delay, delay." I agree we should delay any confirmation, but it wouldn't be delay for delay's sake, and it's not about obstruction. Rather, it's about ensuring the American people have the majority voice in choosing Scalia's replacement. It should not be decided by a lame duck president in the final months of his presidency.
We're less than nine months away from what will be the most consequential election of at least a generation. In November, the American people will chose the next president, and by doing so, will be choosing between two very different visions for our country - the progressive, liberal vision of Barack Obama, with a radically altered Supreme Court bent more on judicial activism, or the conservative, "rule of law" vision of Justice Scalia in which the high court's balance is reaffirmed. My hope is that his successor - whomever that man or woman turns out to be - shares Scalia's same deeply held respect for the Constitution and the rule of law.
As a U.S. House member, I do not have a vote on this issue. But, just like you, I have a voice, and I encourage both of Ohio's senators to follow Senate Majority Leader Mitch McConnell's lead and have our next president make this vital appointment.
(Johnson, a Republican from Marietta, represents Ohio's 6th Congressioanl District, which includes Jefferson, Harrison, Carroll and Belmont counties.)