I Late U.S. Supreme Court Justice Antonin Scalia’s biggest fans and greatest detractors might not see eye to eye on much, but on this they would agree: Justice Scalia believed first and foremost in the Constitution of the United States. The specific words were the focus for many of his decisions and dissents during his three decades on the bench of the Supreme Court.
Article II, Section 2 of the Constitution states that the President shall have the power to nominate, with the advice and consent of the Senate, Justices of the Supreme Court. Nowhere in the Constitution does it say the President or the U.S. Senate should put aside these responsibilities because of politics or a presidential election, and we cannot let partisan bickering cripple the nation's highest court.
Washington gridlock has already succeeded in largely immobilizing the legislative and executive branches of our federal government. To allow it to now paralyze the judicial branch, in defiance of the U.S. Constitution, would be a disservice to both parties and to Justice Scalia's legacy. And this is not an academic exercise. The current Supreme Court term could be one of the most important in the last 50 years, with cases affecting women's health, immigration and workers' rights. This only underscores the fact that the American people deserve an orderly and swift confirmation process.
In 1988 outgoing President Ronald Reagan oversaw the confirmation of current Supreme Court Justice Anthony Kennedy. Like today, Kennedy was considered during a presidential election year and the Republican executive faced a Democratic Senate. Yet neither President Reagan nor Senate Majority Leader Robert Byrd shirked their responsibilities because of the election. If President Reagan and Leader Byrd were able to put politics aside, so can President Obama and Leader McConnell.
As a Governor who works with a divided legislature, my operating principle has been that governing comes first and politics comes second. In New York, this approach led to Republicans and Democrats coming together to pass marriage equality, the toughest gun control law in the nation and, after decades of historic dysfunction, 5 on-time balanced budgets holding state spending below 2%.
At times I have faced attacks from the extreme wings of both parties for this approach. These are the same forces that would prefer to see an epic partisan battle rather than have a new Justice both sides can accept sitting on the Supreme Court. Some on the left would have the President put forward the most ideologically intractable nominee possible as a political statement, knowing that choice would go down in flames. And some on the right would have the Senate leadership refuse to hold hearings or a single vote to consider any choice by the President, simply to show the party's base that anything the President tries to do, they will stop.
That vision is not what our founding fathers had in mind when they wrote the Constitution in the first place. Following the revolutionary war, our founding fathers saw a young, struggling nation that had defied the most powerful empire in history. They knew that after years of a British monarch imposing his will on the people from across an ocean, our new system of government needed to allow debate and a chance for both sides to say their piece. But they also knew that our democracy could not survive on debate alone. It needed a system of government that drove both sides towards decisions and action so our country could move forward and grow. It meant compromise and it meant allowing one another's political opponents to speak and sometimes even trying to listen to their point of view with an open mind.
The Constitution lays out clearly the guiding principles of our government's responsibilities to the people. Some of the most important responsibilities are shared between the different branches of government for the very reason that divided control would force both parties to work together. We will have failed our founding fathers and the document they signed if our parties' leaders are no longer willing to even try.
Today some of the Constitution's staunchest defenders are the same voices that say we should cast it aside. Justice Scalia's belief in the constitution was not so fickle. He believed in it when it supported his conservative principles such as in Kansas v. March in which he voted to uphold a state death penalty statute. He also believed in the constitution when it contradicted his conservative beliefs such as in Maryland v. King where he opposed the right of law enforcement to collect and store DNA from any arrestee as a violation of the 4th amendment.
Politics are always hard to put aside, even harder in an election year. But in this moment both Democrats and Republicans need to put their Constitutional responsibilities first. That’s what we've done here in New York, that's what needs to finally happen in Washington D.C. and that's what the legacy of Justice Scalia deserves.
Cuomo is the governor of New York