Who should nominate next Supreme Court judge?

Posted at 9:40 AM, Mar 11, 2016

COLUMBUS — Critics urged U.S. Sen. Rob Portman on Thursday to “do his job” instead of blocking the president’s nominee for Supreme Court judge.

The death of Justice Antonin Scalia on Feb. 13 has caused an even larger rift between President Barack Obama and Senate Republicans.

U.S. Senate Majority Leader Mitch McConnell, of Kentucky, had said that citizens “should have a voice in the selection of their next Supreme Court justice.”

Republican lawmakers, including Portman, have declared they would not hold any confirmation hearings or a floor vote on a potential Supreme Court nominee until after the upcoming presidential election.

Portman, who is running for reelection this fall, has previously said that it was tradition for the Senate to not act on lifetime appointments during a president’s final year.

However, the Constitution of the United States affirms that the president shall nominate a replacement and the Senate should conduct hearings to vet the potential nominee, regardless of its timing.

Steve Dettelbach, a former U.S. Attorney for the Northern District of Ohio, said Portman’s argument was weak and not supported by law.

“This idea that somehow the presidential term is informally shortened by almost one-fourth – after the people have elected the president – just doesn’t seem to find any home in the Constitution,” Dettelbach said.

The Senate’s actions would have significant and potentially harmful consequences to the country, said Jim Obergefell, lead plaintiff in last year’s Supreme Court same-sex marriage decision.

“That could force the Supreme Court to weigh decisions for two terms under a 4-4 split,” Obergefell said. “With that type of a split it would be up to the lower courts to give the final word on cases that impact millions of Americans.

With many cases recently decided by 5-4 margins, the vacancy could affect current cases involving immigration, abortion, health care law, affirmative action and public employee unions.

Obergefell v. Hodges, a case that resulted in the legalization of same-sex marriage across the United States, was one of many landmark cases that was decided by a 5-4 margin.

If that decision had been split 4-4, Obergefell said lower court rulings would have been held and marriage equality would not have been the law of the land.

“Tying the hands of the high court for two terms severely undermines the rule of law and leaves many important legal questions unresolved,” he said.

Greg Moore, executive director of the National NAACP Voter Fund, said Republican senators seeking reelection are playing a risky game by saying they won't examine the president’s Supreme Court nominee.

A recent Wall Street Journal/NBC News poll found that 55 percent of registered voters disagreed with Senate Republicans' decision to leave the opening created by Scalia’s death vacant until next year.

“We just want our political system to work,” Moore said. The people of these states expect, and they really deserve, to have their representatives do their jobs.”

About 1.5 million people have signed a petition demanding Portman and Senate Republicans to “do their job.” Local members  of various advocacy groups, including Progressive Change Campaign Committee, delivered those signatures to Portman’s Cleveland office and Hamilton County Courthouse in Cincinnati on March 3.

Joshua Lim is a fellow in the E.W. Scripps School of Journalism Statehouse News Bureau. You can reach him at   or follow him on Twitter at @JoshuaLim93.