FREEPORT — U.S. Sens. Mitch McConnell, Ted Cruz and Marco Rubio claim to be “strict constructionists” of the Constitution. That is, they claim to adhere to a legal philosophy that the Constitution should be followed as strictly as possible, adhering to the plain text of the document as opposed to placing that text in historical or structural context.

The father of modern strict construction was Justice Antonin Scalia, who died unexpectedly Feb. 13, leaving a vacancy on the Supreme Court.

Now, rather than following their own strict construction philosophy, these tea party and establishment Senate Republicans have sought to place their own political ideologies (and ambitions) ahead of the plain language of the Constitution.

Article II provides that the president “shall” appoint justices to the Supreme Court, without any exception for appointments that come late in a term or during an election year. The Senate’s job is limited to providing “advice and consent.” Ignoring the president’s nominee because some senators do not like the president is not an option permitted by the Constitution.

That this is an election year does not change the Senate’s constitutional duties. In fact, many presidents have nominated justices to the Supreme Court in election years (it has happened 24 times in our history), and the confirmation rate for those justices (approximately 87 percent after hearing) is equivalent to those nominated at any other time in a president’s term.

Our Supreme Court is made up of nine justices. This is no coincidence. Having an odd number of justices prevents ties.


A tie is a big problem, because there is no winner, and therefore the Supreme Court lacks power and decision-making authority in tied cases. This prevents the Supreme Court from fulfilling its essential function: to establish the law that all courts and persons in our land must follow.

Given the cases that are now before the Supreme Court, failing to appoint a successor to Justice Scalia in a timely manner will mean that many important cases, dealing with such issues as immigration policy, abortion, contraception, affirmative action and collective bargaining, may remain unresolved for now, and, in some cases, for years (if a case must be re-argued or refiled in the future, as is likely).

In short, the failure of the Senate to do its constitutional job will lead to paralysis of the Supreme Court, which will cause uncertainty for political parties, courts, societal institutions, capital markets and others that rely upon a functioning judiciary. It is as if Congress, not content with its own ineptitude and abysmal approval ratings, has decided to spread its infection of gridlock and paralysis to the judiciary.

Of course, this is precisely what the Founding Fathers sought to prevent by establishing co-equal branches of government and clear separation of powers. The Senate’s refusal to fulfill its constitutional function of “advice and consent” is a gross violation of constitutional separation of powers.

If the Senate can take the unprecedented and unconstitutional position that it will not even consider a nominee, simply because it is an election year and it does not like the president, what would prevent the Senate from refusing to consider nominees during the whole of a president’s second term – or, for that matter, at any time during the term of a president that some senators oppose for political reasons?

Here in Maine, we should be proud that our senators have not succumbed to the unconstitutional positions of tea party and establishment senators like McConnell, Cruz, Rubio and Kelly Ayotte (of New Hampshire), who have stated that they will refuse to hold hearings or vote on anyone nominated to the Supreme Court by President Obama.

Sen. Angus King, an independent, has taken the only constitutionally defensible position – that he will fulfill his duty to provide “advice and consent” by allowing the process to move forward with hearings and a vote.

Sen. Susan Collins, a Republican, has not gone as far as to support holding hearings and a vote, but at least she has been courageous enough (in light of the company she keeps in her party’s caucus) not to rule out her support for this process.

Once President Obama has presented a nominee, the people of Maine should expect nothing less from Sen. Collins than that she will remain independent from the Senate Republican establishment and work hard to lead a coalition to do the Senate’s constitutionally mandated job of holding hearings and a vote on the president’s nominee.

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