Portman: Why Supreme Court choice should wait

U.S. Sen. Rob Portman is a Republican from Terrace Park.

Antonin Scalia was a respected jurist and the acknowledged intellectual leader of the four conservative justices on a balanced Supreme Court, with four conservative and four liberal justices and a swing vote that has often determined the outcome.

That balance is now challenged at a time when the Supreme Court is increasingly asked to decide important matters that affect us all: health care, immigration, energy and environmental policies, First Amendment rights to free speech and freedom of religion, Second Amendment rights, and fundamental constitutional questions about the role of the legislative branch as the executive branch acquires increasing power. It’s no wonder people care about the composition of the court. It affects all of our lives more than ever.

At such a time, we should also care about the legitimacy of the court as an institution, the credibility of this key lifetime appointment and the process through which this key nominee is considered. With a spirited and partisan presidential campaign well underway in the last year of a president, the question is whether this is the right time to go through what would be a highly contentious process with a very high likelihood the nominee would not be confirmed, or is it better to let the people have a voice through their choice for president and have a nominating process in a less partisan atmosphere? I acknowledge this is not an easy question to answer, but I think there is a wisdom in this leader’s words:

“It would be our pragmatic conclusion that once the political season is under way, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over. That is what is fair to the nominee and is central to the process. Otherwise, it seems to me …we will be in deep trouble as an institution. Others may fret that this approach would leave the Court with only eight members for some time, but as I see it … the cost of such a result – the need to reargue three or four cases that will divide the Justices four to four – are quite minor compared to the cost that a nominee, the President, the Senate, and the Nation would have to pay for what would assuredly be a bitter fight, no matter how good a person is nominated by the President …”

Mitch McConnell? No, Vice President Joe Biden, when he was chairman of the Senate Judiciary Committee during the last year of a Republican president. There have been similar statements from the current Senate Democratic leader and the next one, but the point Biden made about the legitimacy of the nominee and the institutions of government is persuasive. I agree with him that it would be better to allow this confirmation to take place in a less partisan atmosphere once the people have spoken by factoring in this important issue as part of our presidential vote.

Some argue that the American people have already spoken. And I agree they have. Both the president and the Senate majority were fairly and legitimately elected. The last time we spoke as a nation, two years ago, the American people elected a Republican majority in the U.S. Senate in an election that was widely viewed as an expression that people wanted a check on the power of the president.

The president has every right to nominate a Supreme Court justice, and I’m certainly willing to meet with his nominee. But the founders also gave the Senate the exclusive right to decide whether to move forward on that nominee. For the reasons Biden described above, it has been common practice for the Senate to stop acting on lifetime appointments during the last year of a presidential term, and it has been 80 years since any president was permitted to fill a Supreme Court vacancy that arose in a presidential election year.

I have concluded that the best thing for the country is to trust the American people to weigh in and to have the confirmation process take place in a less partisan atmosphere. Awaiting the result of a democratic election, rather than having a nomination fight in this contentious election-year environment, will give the nominee more legitimacy and, as then-Senator Biden pointed out, better preserve the institutional credibility of the Senate and the court.

I have supported some of President Obama’s federal court nominees and opposed others, based on their qualifications. I look forward to considering the nominee of our new president. Whether the American people elect a Republican or Democrat, I will judge his or her nominee on the merits, as I always have.