Portman, GOP should act on high-court nominee

Shortly after I underwent the judicial nomination and confirmation obstacle course in 1979 to become a judge on the 6th U.S. Circuit Court of Appeals, the 1980 presidential campaign began with candidate Ronald Reagan attacking the means used by President Jimmy Carter to integrate the federal courts.

He promised to change the face of the federal courts by imposing a litmus test that would seek out judges who were “strict constructionists.” By that he meant judges who would view the Constitution as it was written by the drafters in Philadelphia in 1787. Never mind that it would have meant that I and those who looked like me were nonpersons in the eyes of the original drafters. Of course, through the years, the 13th, 14th and 15th Amendments and subsequent civil-rights laws corrected that original error of the Founding Fathers, who were slave owners.Those corrective steps did not authorize what Senate Majority Leader Mitch McConnell announced an intention to do before the body of the late Antonin Scalia was cold – curtail the constitutional power of President Barack Obama to fill vacancies on the Supreme Court.

To my sadness, Ohio Sen.Rob Portman joined with Majority Leader McConnell when he announced that filling the seat of the late Justice Scalia should await the election of the next president. Such a requirement is nowhere found in the Constitution. It clearly states that the President “shall nominate … Judges of the Supreme Court.”

I am compelled to remind Majority Leader McConnell and my good friend Sen. Portman that they are straying, not only from the Constitution but from the “strict construction” pledge of President Reagan as well. I must note, however, that the notion of “strict construction” is actually a mirage. Many of us knew that the notion of “strict construction” was, in actuality, a cover for halting the use of the Constitution and the federal courts to eliminate vestiges of Jim Crow.

We may come from different political parties and have differing political philosophies, but most Ohioans are united over a belief in the rule of law and that the United States Senate must act promptly to comply with the Constitution by confirming a qualified nominee to fill the vacancy on the United States Supreme Court. All Americans will be harmed if the Senate defaults in its duty. Disputes over individual rights will remain unresolved.

The states, which have a unique and pressing interest in a full and functioning Supreme Court, will be hobbled. We rely on the Supreme Court to resolve questions of federal law, to resolve disputes between the states, to evaluate the constitutionality of state laws, and to ensure that federal and constitutional laws are interpreted and applied uniformly across all 50 states.

The Supreme Court not only resolves disputes that implicate states’ vital interests, it often does so in closely divided cases. Many of the Supreme Court’s recent decisions involving civil rights and states have been decided by 5-4 decisions.

If a Supreme Court justice is not confirmed until the next administration, the Supreme Court would be without a full complement of Justices for at least the better part of two full terms and perhaps longer. This unprecedented vacancy would render the Court unable to perform its essential function. Should the Supreme Court decide cases by a 4–4 vote, the lower court’s ruling would stand and a nationwide precedent would not be created. The country would either face constitutional uncertainty or be governed by different constitutional interpretations.

As Ohioans, we have a right to expect that our Sen. Portman will do the job that the people of Ohio elected him to do. Obstruction is not the solution.

Judge Nathaniel R. Jones, a Youngstown native, served on the U.S. Court of Appeals for the 6th Circuit from 1979 until his retirement in 2002. He is currently of counsel with Blank Rome LLP. Judge Jones served as an Assistant United States Attorney for the Northern District of Ohio and as Assistant General Counsel to President Lyndon Johnson’s National Advisory Commission on Civil Disorders, also known as the Kerner Commission. He held the position of general counsel of the National Association for the Advancement for Colored People (NAACP) from 1969 to 1979.