Legal experts from the University of Illinois have claimed that the position of Supreme Court Justice in the United Sates may be more problematic, both pragmatically and constitutionally, than those senators realize.
The views of the two experts in a new paper co-written by them came after the death of Supreme Court Justice Antonin Scalia when the Republican senators, led by Senate Majority Leader Mitch McConnell, announced that they would neither consider nor vote on any nominee to the court picked by President Barack Obama.
Law professor Robin B. Kar said the senators justify their position by saying that no President has nominated a Supreme Court Justice during an election year in the last 80 years.
However, Kar's research shows that in all 104 cases in which an elected President has faced a vacancy on the Supreme Court and began the appointment process prior to the election of a successor, the sitting President was able to both nominate and, with the advice and consent of the Senate, appoint a replacement justice.
"This is an important and unbroken line of historical precedent," Kar added.
By announcing in advance that they will break from this precedent, Senate Republicans are explicitly seeking to delegate the current President's Supreme Court appointment powers to an unknown successor, which is constitutionally tenuous ground.
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The crux of the problem is an outright refusal on the part of some senators to consider any nominee from President Obama is an attempt to delegate an elected president's Supreme Court appointment power.
This does not mean that the Senate cannot vote against President Obama's nominees, the author cautioned.
However, an outright refusal to do anything at all with respect to a Supreme Court nominee is a different matter, the authors said.
At minimum, the unprecedented nature of Republican senators' current plan is likely to make future Supreme Court appointments more difficult for Republicans and Democrats alike, Kar added.
For example, if Hillary Clinton wins the next presidential election, Obama might withdraw the nomination of Merrick Garland, a relative consensus candidate, and allow her to appoint a more liberal justice.
This study has been published in University of Illinois Law Review.