What would Justice Scalia do about his successor?

Justice Antonin Scalia was a towering figure on the U.S. Supreme Court. He had very strong views about constitutional interpretation and expressed them very forcefully. Scalia was an advocate of originalism, which means that the court should decide constitutional questions with reference to the text and historical context of every constitutional provision.

While the court hasn’t fully accepted Scalia’s view of originalism, nonetheless, the text and historical context are often the starting point for the court’s interpretation of a constitutional provision. This is especially so with respect to the provisions governing presidential and congressional power and responsibility. The framers debated long and hard about these provisions and adopted an approach based on checks and balances. The president and Congress would act in tandem and each branch would act as a check on the other.

When it came to the appointment of Supreme Court justices and important federal officials, the framers provided in Article II, section 2, that the president would have the power to make the nominations, but the Senate would have to “advise and consent” to those nominations.

Thus, the constitutional responsibility of the president and the Senate with respect to Supreme Court nominations is absolutely clear from the text of the Constitution. While the Senate has on a few occasions refused to confirm a presidential nominee to the court, it never has refused to even consider the president’s nomination and to perform its constitutional responsibility to “advise and consent.” There also have been many times when the Senate was controlled by one political party but nonetheless voted to confirm a Supreme Court nominee put forward by a president of the opposite party.

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Given the history of the Senate’s performance of its constitutional responsibility to “advise and consent” to the president’s nominations to the court, it is absolutely astonishing that within a few hours of Scalia’s death, the Republican majority leader of the Senate flatly stated that he wouldn’t permit the Senate to consider the president’s nomination to fulfill the vacancy left by Scalia’s death.

While the Republicans might want to delay the appointment of a new justice until after the 2016 presidential election, so that a newly elected Republican president could make the appointment, this isn’t how our constitutional system is supposed to work. The Senate’s constitutional responsibility is to confirm or reject the president’s nomination. While some Republican senators may refuse to confirm any person nominated by President Barack Obama, that is their choice. But the Constitution requires that the senators stand up and vote.

By long tradition, the Supreme Court has had nine members, so that every case can be decided by a court majority. Where there is an unfilled vacancy and the court is divided 4-4, the case is held over to the next term until the new justice is appointed.

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Many important cases are pending before the court, and with a possible 4-4 division, some cases may have to be held over. Moreover, the court is continually deciding what cases it will hear in the next term.

If the appointment of a new justice is delayed until after the presidential election, the court won’t be able to operate at full strength until well into 2017. This isn’t what the framers intended. It isn’t an originalist interpretation of the Constitution.

It is highly ironic that a Republican-controlled Senate would act so contrary to the originalist constitutional interpretation that Scalia espoused so strongly. The Senate should vote on Obama's nomination to the court.

Robert Sedler is a constitutional law professor at Wayne State University Law School.