We Need a New Supreme Court Justice Now

Only an hour after the nation learned that one of its nine most powerful jurists passed away unexpectedly, Senate Majority Leader Mitch McConnell announced that he would seek to block President Obama from replacing Justice Scalia on the Supreme Court. This week he doubled down—insisting he would not even meet with any (not yet named) nominee.

McConnell’s obstruction would create a vacancy whose length is unprecedented in recent history and at odds with our Constitution. There’s nothing unusual about a president nominating and the Senate confirming a Supreme Court justice in an election year—in fact current Justice and Reagan nominee Anthony Kennedy was confirmed in an election year by a Democrat-controlled Senate.

  Why is the delay such a big problem? A vacancy undermines the Court’s ability to perform its basic function: providing guidance to the nation (and lower courts) about what the law is. McConnell’s plan would leave the Supreme Court hamstrung for more than a full year, spanning two full Court terms (or two years of cases, in the world of the Supreme Court).  

Critical cases about workers’ rights, the meaning of the one person, one vote principle, racial equity, and more are currently pending—and a corporate-friendly, conservative Court is key to McConnell’s objective of preserving power for the one percent at the expense of working families and the rest of America. 

So, the first point is clear: Once President Obama undertakes his constitutional duty and nominates a replacement for Justice Scalia, the Senate must fulfill its constitutional duty by duly considering the nominee.

Who, then, should the President nominate?  As is clear from the pending cases, the Supreme Court holds tremendous sway over countless issues that touch on all aspects of our lives.  But, one overarching issue stands out and should be a priority for the President: our democracy.

Just about every time the Roberts Court has considered the basic rules of the road for governing our society it’s made a mess of things—from gutting the Voting Rights Act to shifting power to corporations and wealthy donors in Citizens United and a 2014 follow up case. But, the past ten years have just continued what has been a long slide. This year marks the 40th anniversary of the case that gave us the dubious principle that unlimited spending is a form of free speech and ruled that we cannot limit big money to level the playing field between wealthy donors and the rest of us.

President Obama said in his recent State of the Union that he is focused on moving our nation towards a 'better politics.' Now comes perhaps his greatest opportunity to secure the pro-democracy legacy he seeks.

We the People need a justice who understands that the Constitution gives us the power to build a democracy in which every eligible citizen can exercise the freedom to vote; the size of a person’s wallet does not determine the strength of her voice; and wealthy interests cannot translate economic might directly into political power. 

President Obama should nominate such a justice, and the Senate should consider her (or him) quickly—so the High Court can return to conducting the people’s business and begin to restore our pro-democracy Constitution.