the national interest

Conservatives Demand Supreme Court Vacancy Be Filled by Next President, Unless That President Is Hillary Clinton

Democratic Presidential Candidate Hillary Clinton Holds Primary Night Event In Florida
No Supreme Court justice for you, Hillary Clinton. Photo: Justin Sullivan/Getty Images

Republicans have approached the Supreme Court vacancy from the newly discovered — but very deeply and sincerely felt — principle that the voters must decide who gets to pick the next Supreme Court justice. (Specifically, the voters in the upcoming election, rather than the ones who elected the sitting president twice.) As The Wall Street Journal, that paragon of principled conservative thought, put it in an editorial last month, “it’s understandable that Republicans want to let the next President fill Justice Scalia’s vacancy. … [L]egal progressives made the Court a partisan cause by making value judgments that are best left for voters to decide.”

In recent weeks, though, circumstances have changed. First, the Republican Party is poised to nominate a candidate who stands little chance of winning. And Obama has nominated a moderate 63-year-old, rather than the potentially more liberal jurist who could possibly hold a seat two decades longer on the bench. Republicans still oppose confirming that justice or even holding hearings. One reason, the Journal explains today, is that hearings might result in hurt feelings. (“The Senate should spare Judge Garland from personal attack by refusing to hold hearings.”) But, bowing to the reality that a Democratic win appears highly probable, the Journal also suggests that Republicans go ahead and confirm Obama’s compromise pick if their party loses in November (“vote for him in a lame-duck session—if Mrs. Clinton wins the election”).

So the old principle held that the voters next November have a sacred right to determine the identity of the next Supreme Court justice. The new principle is that under no circumstances should Hillary Clinton, the candidate who is most likely to win, get to name the new Supreme Court justice.

Election Decides Court Unless Clinton Wins