His death means a vacancy, and as everyone knows, the President gets to nominate someone to fill that vacancy, and to appoint that person with the advice and consent of the Senate. It does not say in the Constitution that the Senate must automatically approve whatever nominee the President makes – the Founders created a Senate, not a rubber stamp. If you want actual illustrations of how this has played out over recent years, look at the list of nominees to the Court rejected by the Senate: In 1968 (a presidential election year), President Johnson tried to elevate Justice Abe Fortas (an old Johnson crony) to be Chief Justice, and simultaneously named another old crony, Homer Thornberry, to the vacancy. The nominations were controversial, and for a variety of very good reasons, both were withdrawn less than four months later. President Nixon saw the Senate reject two of his nominations, Clement Haynsworth and G. Harrold Carswell; Nixon then named a more “moderate” choice, Harry Blackmun, who was unanimously confirmed;
Anyway, the vacancy to which Mr. Bork was nominated occurred on June 26, 1987, and the Bork debacle and the Ginsburg withdrawal led to the nomination of Anthony Kennedy to the same vacancy in November, 1987. He was confirmed to the appointment in February, 1988 (an election year – but by the time of Justice’s Kennedy’s confirmation the court already had been 237 days without its full complement of justices – and even that nomination was made almost a full year before the 1988 election). Since then, President Bush nominated and subsequently withdrew the nomination of his crony, Harriet Miers in 2006, and then, when he nominated Samuel Alito to the court with the Republicans in the majority, Senator Barack Obama voted to filibuster it (that is, to even deny it a vote) – as did Senators Reid, Durbin, Clinton, Kerry and Biden. Today, they all demand a vote for President Obama’s prospective nominee. The White House now says the President “regrets” the filibuster; but pardon us if we think his regret is cheap, because he now wants to have his choice on the court, and the Senate once again is controlled by the Republicans. Of course, Mr. Obama was not the only prominent Democrat who has spoken in favor of defeating Presidential nominations to the court. Here is Joe Biden, then a Senator, now Vice-President, in 1992: “I would highly recommend the president not name someone, not send a name up,” Biden said. “If he {Bush} did send someone up, I would ask the Senate to seriously consider not having a hearing on that nominee.” Here’s Senator Schumer of New York, who also was a Senator when he said this in July of 2007 (five months before the election year): “We should not confirm any Bush nominee to the Supreme Court except in extraordinary circumstances,” Senators Clinton (now seeking the Democrat nomination for President) and Kerry (now the Secretary of State) made similar remarks. Like it or not – the Senate has the power to stop a Presidential nomination. The Democrats did it to Nixon, Reagan and Bush; the Republicans are trying to do it to Obama. It is a power conferred on the Senate, and they do not even have to grant a hearing. In fact, Mitch McConnell, the Republican leader of the Senate said that the Senate was going to withhold consent to an Obama nomination – just as the Democrats did or promised to do to Republican nominees in an election year. The Democrats are demanding that the Republican Senate “obey the Constitution” and vote on the President’s nominee, but they want us to ignore or excuse their behavior and their speeches and their votes when the positions were reversed. Like it or not, the Constitution does not require the Senate to do the President’s bidding. Let’s face it, there is no way a Democrat Senate would confirm a Republican President’s Supreme Court nominee at this stage in the presidential campaign, and the Republicans shouldn’t be expected to behave any differently. The appointment to the Court will be one of the biggest stakes in the November elections, both for the Presidential candidates and for the Senate as well.