Republicans, Democrats agree: Sen. Portman has responsibility to fill SCOTUS vacancy

Ohio scholars from both political parties unloaded on Republicans who insist that President Obama should not fill a newly vacant U.S. Supreme Court seat. This all took place during a news conference held outside Portman’s Columbus office on March 3rd, where speakers urged Sen. Rob Portman to join them in calling for fair confirmation hearings.

“Americans want government that works. We don’t want a judicial system that is left in political limbo,” Common Cause Ohio Policy Analyst Catherine Turcer told a crowd of supporters outside of Portman’s Columbus office. “The drama of elections shouldn’t get in the way of doing the people’s work.’’

Just days after Scalia’s death, Portman told the Columbus Dispatch that the Senate should follow the “Thurmond Rule,” an unwritten principle that says new justices should not be approved during the last months of a presidency.

“There’s a very vigorous debate going on right now about the direction of the country,” Portman said. “This seat is about the direction of the country, and it’s kind of unique because it’s sort of a swing seat. I think it would be better to have it be part of the presidential election process.”

Former Ohio Supreme Court Justice Andy Douglas, a Republican, disagrees.

“As I read the U. S. Constitution, it is not only the prerogative of the President to nominate someone to fill a vacancy on the U.S. Supreme Court, it is also the President’s duty,’’ Justice Douglas said in a statement read at the event. “I am disappointed in, and discouraged by, those who have predetermined that any nominee will not be given a fair hearing or any hearing at all. American citizens deserve better than this.” 

Douglas’ comments place him in league with former U.S. Supreme Court Justice Sandra Day O’Connor, also a Republican, who said, “I think we need somebody there to do the job now and let’s get on with it.’’

Daniel T. Kobil, a professor of Constitutional Law at Capital University Law School, told the news conference that the President’s duty to nominate justices “is one of the few obligations expressly imposed on the President under the Constitution. Those who contend that President Obama should not nominate a judge to fill the Supreme Court’s vacancy ‘during an election year’ are flouting our constitutional system.”

Fourteen presidents have appointed 21 justices during presidential election years, and six of those were truly “lame ducks,” who filled Supreme Court seats even though their successors had been elected, Kobil said. “Over the past 207 years, presidents have nominated 160 justices for the Supreme Court and only 12 have been rejected by the Senate.  This practice is consistent with the Founders’ view that the Senate’s ‘advice and consent’ role is designed to prompt the President to nominate qualified individuals.’’

Attorney and former Congresswoman Mary Jo Kilroy, a Democrat, urged Republicans to put country ahead of party and give the nominee a fair hearing.

“President Obama has nearly a year left in his term, and keeping a vacancy on the highest court in the land for nearly two full court terms is reckless,’’ Kilroy said. “The U.S. Supreme Court hears major cases of great public interest and must be fully constituted to be able to properly do its job.’’

Justice Scalia’s unexpected death on Feb. 13 leaves the nation’s highest court with a 4 to 4 ideological split likely to produce 4-4 deadlocks until his seat is filled.