The procedural debate over filling the Supreme Court vacancy resulting from Justice Scalia’s death has become tiresome already. Both sides are dressing up their arguments in constitutional clothing, to which the Democrats are adding a dose of moralism.
Yet everyone understands that if positions were reversed — if a Republican president wanted to fill a vacancy and the Democrats controlled the Senate — Democrats would be prepared to block any conservative nominee on the theory that the president is a lame duck (see more on this below).
Meanwhile, Republicans would be trying to shame Democrats for their obstructionism and the Republican president would be leading this charge, while looking for the nominee whose rejection would provide the GOP with the most political ammo.
Republicans might also be claiming that the Senate has a constitutional obligation to confirm a qualified Supreme Court nominee or even to give such a nominee an up-or-down vote. If so, they would be wrong. The argument is untenable, as Adam White shows.
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