There is no so-called "Thurmond rule" in the Constitution that prohibits the confirmation of a supreme court judge in the last year of the residency. I am hardly the first person to point out that Justice Kennedy was confirmed in the last year of the Reagan presidency by a vote of 97-0.
Republican Senate Majority Leader Mitch McConnell didn't wait for Scalia's body to get cold before announcing he would not even allow a hearing, let alone a vote, on an Obama nominee to the Supreme Court. This is contrary not only to precedent, but to the Constitution itself, as I previously noted. McConnell is betting that the Senate Republicans need to remain obstructionist in order to placate its Tea Party zealots, who turn out at the polls in strong numbers.
Secondly, the generally 5-4 right-wing Supreme Court has been possibly more important than Congress in determining legal policies that affect the nation. The Republicans have long understood the importance of the Supreme Court and federal bench as a means of, ironically, legislating from the bench. The Democrats have been relatively obsequious in the battle for federal judicial appointments, while the Republicans take no prisoners in opposing federal appointments.
That McConnell so inappropriately, in timing, announced that the Republican Senate majority would not even allow a judicial committee hearing for an Obama appointee is testament to how powerfully the narrow right-wing control of the Supreme Court has changed the country to favor the wealthy, to limit the power of non-whites and women (in general), and to further the interests of Republicans in winning elections, among other public policy tilts against progress.
The 5-4 on the Supreme Court, of which Scalia was a part, was more an extension of a Republican Congress than a separate branch of government. McConnell wants to keep it that way, and is hoping for a Republican to win the White House and be sworn in in 2016 - and for Republicans to maintain control of the Senate.
JB: Clearly, my wish list is a whole lot different than McConnell's. Anything you'd like to add before we wrap this up?
MK: Remember that the 2016 battle over a Supreme Court nominee is going to be as political as an actual issue of confirmation. Both the Republicans and the Democrats are going to use the nomination politically as proof of how important it is their voters turn out, because the next president will pick the crucial swing vote. I don't, myself, see any circumstances in which the Senate Republicans would allow an Obama nominee to be seated, unless it was someone like Rick Santorum.
JB: Yikes! What a concept. Thanks so much for talking with me again, Mark. It's always a pleasure.
My previous interviews with Mark:
also worth a look:
Jeffrey Toobin Looking Back Feb. 29, 2016 issue of the New Yorker