Tester: Appointing a new Supreme Court justice shouldn't wait

by Tom Lutey

The Senate’s Republican majority should find the will to confirm a replacement for former U.S. Supreme Court Justice Antonin Scalia, U.S. Sen. Jon Tester said Tuesday, arguing that waiting for a new president as proposed by the GOP is too long.

“President (Barack) Obama is going to be in office until the middle of January; it’s the middle of February now. That’s 11 months out. I mean, come on,” said Tester, a Montana Democrat. “We should not let the election process stop us from doing our job. I think it’s a mistake.”

Tester said he was amazed by how quickly after Scalia’s death Feb. 13 that Republican leaders announced they would not let the confirmation process move forward until there was a new president.

The Senate has never taken more than 125 days, or about four months, to vote on a successor from the time of nomination, according to a recent New York Times report. On average, a nominee has been confirmed, rejected or withdrawn in 25 days. But few presidents have successfully filled vacancies announced in their final full year, the Times said.

But since Ronald Reagan nominated Sandra Day O’Conner on July 7, 1981, the average has been just over 66 days.

Obama has a Constitutional obligation to recommend an appointee to the Senate, Tester told The Gazette. The Senate should hold a hearing on that appointee and make a decision, even if the decision is to reject the nominee.

The list of Obama nominees currently awaiting Senate confirmation is more than 140 names long, according to White House data. Nearly all of those nominees were put forward by Obama before the current election season.

“There’s a ton of people who are sitting in the wings – by the way, people who want to serve in government,” Tester said. “The guy who is overseeing the Iran financial sanctions. They won’t confirm him. There’s all sorts of positions like that where we don’t have anyone in the position and you wonder why government isn’t working. It’s because quite frankly Congress isn’t working.”

The longest delayed nomination is for a seat on the United States Court of International Trade. That nomination was made Jan. 7, 2015. There are more than two dozen vacant federal judgeships for which Obama made nominations in 2015 that the Senate hasn’t filled.

All three members of Montana’s Congressional delegation issued statements over the weekend about Scalia’s death. Tester is the first to give his opinion on whether the Senate should consider Obama’s nominees for a new Supreme Court justice.

Daines, who is in Alaska for a field hearing on energy policy, contends the Senate should wait until a new president is sworn in.

“Steve will thoughtfully consider any nominee’s experience and merits,” said Alee Lockman, Daines’ communications director. “However, he believes that the long-standing practice of not confirming a nominee during a presidential election year should be maintained. The Senate has a constitutional role to advise and consent, and an appropriate consideration is that the American people have already begun voting on the next president.

“Steve believes the nation would be best served if filling this vacancy occurs in a new Congress and outside the political climate of an election year.”

The last time a Supreme Court appointment was made during an election year was Feb. 3, 1988, when Democrats controlled the Senate and confirmed Justice Anthony Kennedy, who was nominated by President Ronald Reagan.

Americans were already voting in presidential primaries when Kennedy was confirmed, according to the Office of the Clerk of the U.S. House of Representatives. Michigan voters cast their ballots Jan 14, 1988. Hawaii voters cast their votes the day after Kennedy’s appointment. Four states had held primaries or caucuses by Feb. 8 that year.