Tester, Daines split on whether to fill Scalia's seat this year

by Mike Dennison

HELENA – Montana’s two U.S. senators are split along party lines, on whether the president should nominate a successor this year to U.S. Supreme Court Justice Antonin Scalia, who died Saturday.

Republican U.S. Sen. Steve Daines said Tuesday that President Barack Obama should not nominate a successor to Scalia – and that the vacancy should be appointed by the next president.

“The best way to ensure this process remains nonpartisan would be waiting until after the election, before a nomination is made,” he said through a spokeswoman.

Democratic U.S. Sen. Jon Tester, however, said it would be “almost criminal” for Obama not to nominate a successor this year – and just as bad for the Senate not to consider the nomination.

“To just say `no’ right out of the chute, and to say we’re not going to do anything, we’re going to leave it to the next president, I think just is not doing our job in the U.S. Senate,” he told MTN News. “To have the president not do his job would be, I think, almost criminal.”

Scalia’s unexpected death Saturday leaves the court with just eight members, divided equally between conservative and liberal factions.

Obama says he plans to submit a nominee to the Senate, which is controlled 54-46 by Republicans. It’s also possible that 60 votes would be required to overcome any filibuster of a nominee.

GOP Senate leaders have said they don’t intend to act on any nominee submitted by Obama – although Sen. Charles Grassley of Iowa, who chairs the Senate Judiciary Committee, said Tuesday he may hold a hearing on a nominee.

Daines said be believes it is a “long-standing practice” that nominees will not be confirmed during a presidential election year.

Yet the Wall Street Journal reported Tuesday there are no clear patterns in recent history, regarding appointment of Supreme Court justices during election years.

The Senate in 1968 blocked lame-duck President Lyndon Johnson from installing a new chief justice and appointing his successor, and then-President Dwight Eisenhower made a temporary appointment in 1956, just before he was re-elected.

Also, in 1940 – an election year – the U.S. Senate quickly confirmed a Supreme Court nominee from President Franklin D. Roosevelt.

Daines said a U.S. Supreme Court justice is a lifetime appointment, so he or she must be given “thorough and thoughtful consideration.”

The voice of the American people should be considered in the process as well, Daines added, saying they should be allowed to choose a new president who will appoint the next Supreme Court justice.

Daines noted that Democratic Sen. Charles Schumer of New York said in mid-2007 that no new Supreme Court justice should be confirmed during the final 18 months of then-President George W. Bush’s final term.

Tester told MTN News Tuesday that Schumer was wrong in 2007 and that Republicans are wrong now.

The high court should not be left without a justice for more than a year, Tester said, especially when it could face major decisions in the coming months.

“Right now, it’s a 4-4 tie (on controversial issues),” Tester said. “That means everything is pushed back to the lower courts. That’s not the way to do business.

“Just because the legislative branch is dysfunctional, we shouldn’t cause the judiciary to be dysfunctional.”

Tester also said if Obama wants to name a new justice, he must nominate someone who’s acceptable to both sides of the political spectrum.

“I think there are plenty of good minds out there that could fill Justice Scalia’s position on the court, so that the court can do the work it needs to do, to keep this democracy moving in the right direction,” he said.