When Senate Majority Leader Mitch McConnell said he would block any nomination by President Obama to replace Supreme Court Justice Antonin Scalia’s seat… I did take a skeptical eye, on the merits. But there is merit. And contrary to Minority Leader Harry Reid’s opinion, there is strong precedent for doing so.
Conservatives have a better case than at first-glance for delaying Scalia’s replacement to the next Presidency. Even if Scalia’s replacement were nominated tomorrow, it would be highly unlikely he-or-she would be paneled in time to get up to speed on current cases pending. The Court hears cases orally through March, and all rulings are published by the end of June.
It usually takes at least sixty to ninety days to panel a justice through the nomination, Senate hearing protocol, and subsequent voting. And that’s assuming a justice’s nomination is not contested (as they often are). Miers, Thomas, Bork, etc.
The conservative argument is that Scalia, a conservative justice, could not be replaced until the next Supreme Court term, and that nominating a justice next January, would be sufficient time – especially if the justice’s nomination was drafted in late November, by the transition team of the next president.
Senate hearings could not begin until a nomination is formally submitted, but that could (literally) begin on a president’s first day in office. That would give February, 2017 for the Senate to confirm, and still leave the Court enough time to accommodate majority and minority positions for cases in the next term.
While there’s no guarantee who the next President will be, Scalia’s heart has certainly made life more interesting in Washington. It always did.