The sudden death of the conservative Supreme Court justice Antonin Scalia has set the stage for a constitutional crisis in this still very fluid election year. Republican lawmakers – urged on by the GOP presidential contenders – have vowed to block an Obama-picked successor by refusing to consider any nominee the president puts forward.
Obama has promised to carry out his constitutionally mandated duties and make a nomination “in due time” with the expectation that the Senate, the legislative branch that is constitutionally empowered to review his choice, will do its job.
Within hours of Scalia’s death, however, Senate majority leader Mitch McConnell laid down a hard line, saying, “This vacancy should not be filled until we have a new president.”
On Tuesday, Dorchester native and MSNBC broadcaster Lawrence O’Donnell discussed the looming crisis with a man who understands the issue – and the stakes – better than anyone “in the known universe” – former Senate Majority Leader George Mitchell, a Maine Democrat, who is also a retired federal judge and the special presidential envoy renowned for helping to forge what has been to date a lasting peace in Northern Ireland.
Mitchell has a reputation as a brilliant jurist, polished diplomat, and highly capable legislative leader who fostered civility and, whenever possible, bi-partisanship. In 1994, he turned down an invitation from then-President Bill Clinton to fill a vacancy on the Supreme Court.
During his time in the US Senate, Mitchell vetted and voted on eight nominees for the high court, including – quite controversially – Clarence Thomas. Under pressure from fellow Democrats to block Thomas’s hearing through a filibuster, Mitchell took the high road and allowed a vote to go forward despite his reservations about the nominee’s fitness for the court.
It was the right thing to do for the US Senate, the Supreme Court, and our delicate democracy.
This week, Mitchell expressed to O’Donnell his disdain for the outright obstructionism that Republican leaders have promised to deliver. “I think it’s a very unfortunate intensification of the increased partisanship that has already brought the Senate and the House into such disrepute and disdain in the country,” he said, adding, “It’s an insult to the American people to say that they should decide. They decided: They elected Barack Obama twice, the second time by 5 million votes. The constitution prescribes a four-year term. It isn’t a three- year term or a three-and-a half year term… I think that given the importance of the Supreme Court in our society and the delicate balance that exists, everyone should have as their objective filling this seat with the best, most qualified person as soon as possible.”
George Mitchell would be a highly unconventional choice for President Obama to put forward to replace Scalia. When asked by O’Donnell whether he would consider it if asked, the 82-year-old Mitchell laughed it off, saying, “I’m too old for it now.”
But what if the president did put Mitchell forward as his nominee? His credentials for the job are impeccable and he could serve ably and in concert with this president’s world view. The next president would very likely have a chance to choose a successor for Mitchell in the coming years. If Republicans continue to irrationally resist the right to give even a George Mitchell a fair hearing, they can blame themselves later for running their once-proud party into the sand.
But, as the president well knows, both Democrats and Republicans bear some responsibility for the present tone and tactics that have gradually come to be the norm. The nomination of George Mitchell, a learned, accomplished and widely respected leader, offers the best possible way forward through what could otherwise be a troubling, destructive period for the republic.
Editor's Note: MSNBC's The Last Word with Lawrence O'Donnell included this editorial in a discussion about the SCOTUS controversy during its program on Feb. 17: