Sunday, February 21, 2016

Republicans in the Senate Must Hold Firm on Supreme Court Nominee

This article first appeared in Eagle Rising.

Image result for antonin scalia

Antonin Scalia

No sooner had we learned of the passing of Supreme Court Justice Antonin Scalia, than the politicians on both sides started talking about his successor. No wonder. Conservatives had been hoping fervently that President Obama would not get another Supreme Court pick, which would shift the balance of the Supreme Court if we lost one of our four solid conservatives. That is exactly what happened. Now the future of the Supreme Court, indeed, hangs in the balance. Elections have consequences, and that is being underlined at this time. Obama is president, and he has the right and the responsibility to name a successor.

However, elections to Congress also have consequences, and the Republicans currently control Congress. It is their responsibility to advise and consent.

Normally, I am one who believes in a straight up yes or no vote in Congress. We have seen so many ugly Supreme Court nominee battles in Congress, most notably, Robert Bork and Clarence Thomas.

In this case, the Republicans in Congress have options since they are in the majority. They don't have to confirm anybody until Obama leaves office. They don't have to hold hearings on Obama's nominee, and they don't have to bring it to a vote. It may not be fair, but that's the way the system is structured. The Democrats have used every tactic at their disposal when they were in charge, and it's time the Republicans learn to play some hardball.

The Dems are already yelling and screaming. They are calling on their supporters to lobby Congress to "do the right thing". But who are they to complain? When Obama was in the Senate, he participated in a filibuster against the nomination of Sam Alito. Both Senators Chuck Schumer and Pat Leahy are blasting away at Mitch McConnell's statement that nothing will happen until a new president is in office. Schumer said this week in an interview that Obama's term was for four years not three (meaning he didn't lose his responsibility to name a Supreme Court justice in his final, lame duck year). Yet in 2007, 18 months before the administration of George W Bush would end, he said that no Bush nominees should be considered except in extraordinary circumstances. (Make that 2 and 1/2 years for Bush, Senator Schumer.)

Leahy also showed his hypocrisy when discussing the Thurmond Rule, which he supported in 2006 when the Dems controlled Congress and now opposes with the Republicans in charge..

Granted, one can find hypocrisy on both sides. The Republicans screamed at Democratic tactics when they (the Dems) were in charge, and the Democrats are screaming now. Congress is a veritable sausage-making factory, and it isn't pretty. However, if the rules permit, the Republicans must hold firm and not consider an Obama nominee. The stakes are simply too high. If they cave in (once again) on this one, they have no right to ask for our votes.


Siarlys Jenkins said...

Yeah yeah. This is pure political opportunism, and you know it. I have declined to sign numerous petitions DEMANDING that the senate vote on President Obama's nominee, whoever it is, because that is the same sort of shrill political opportunism. But anyone who is digging in their heels at letting the normal process work in the normal way is a hypocrite at best, possibly bordering on treason at worst. Of course senators could vote no... but then they'd have to have a plausible rationale, wouldn't they?

Oh well, if you want President Sanders to nominate Scalia's replacement, it may happen.

Gary Fouse said...

I said that both sides are guilty of hypocrisy. In 2005, McConnell was insisting that judicial nominees get their hearings and their votes.

What I am saying is that if the "parliamentary" (for lack of a better word) procedures allow the majority to refuse to hear it, then the Republicans need to play the same hardball as the Dems have played.

Siarlys Jenkins said...

Democrats have never refused a hearing to a Supreme Court nominee by any president.

Every one of them got hearings before the Senate Judiciary Committee, and and up or down vote in the full Senate. (Exception: Douglas Ginsburg withdrew after revelations that he smoked marijuana while at Harvard -- which frankly wasn't relevant in my book). Enough Democrats were found to vote for the incompetent Clarence Thomas to confirm him.

At most, there was some attempt at filibuster by some Democratic senators, when a nomination came to a vote.

The hypocrisy is in making up nonexistent traditions and precedents about how presidents don't make judicial appointments for the last year of their second term. That's not even confusion, that's stone cold lying through their teeth.

elwood p suggins said...

After Obama called Republicans "obstructionists", WH spokeshole Josh Earnest said that Obama "regrets" his decision to filibuster Alito. Of course, the filibuster is a form of obstructionism, and an effort to keep a resident's nominee from being seated. Sometimes works, sometimes doesn't.

Interestingly enough, Earnest also talked about the wording of the constitution being "unambiguous", while Obama observed that the practice of no appointments in an election year "was not in the constitutional text”.

Well. While there is a lot of stuff that is not in the constitutional text, much/most of the Constitution is pretty unambiguous until some fool makes it ambiguous. Here is some constitutional text:

"The President...shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law...."

(Article II, Section 2, Clause 2)

While this particular constitutional text does not address this specific issue, neither does it set any time frame,, deadlines, etc., (as it surely does with, for example, very specific stuff on Presidential electors/elections)on appointments, votes, etc.

Just for fun, as to the Earnest/Obama concerns over ambiguity. I would note that is fairly clear (unambiguous??) that a President's nomination authority is specifically subject to both the advice and consent of the Senate. Where I come from, advice is essentially always sought/offered prior to any decision being made, and advice necessarily precedes consent. It would appear to be implicit, if not explicit, that a President would therefore be required to confer with the Senate (both/all parties) relative to a slate of potential nominees prior to acting. Doesn't happen that I know of.

Siarlys Jenkins said...

elwood, the constitution was written by men who thought everyone would do their job in a timely manner. They hadn't anticipated the need to specify "if the senate does not act within one month the president's nominee shall be seated, and there must be a full hearing before a vote is taken, so there." It was written for adults.

A filibuster, by definition, takes place when a matter has been brought to the floor and is being debated. There are pros and cons. I recall in 2010 attending one of Senator Feingold's listening sessions -- he used to have then in every county in the state at least once a year -- and several partisan Democrats were saying that a minority should not be allowed to bring the business of the senate to a half. Feingold said, well, Thomas Jefferson said the senate is the saucer, where passions have time to cool. In other words, there are matters of principle and purpose that are higher than the specific objectives of a specific motion or legislation.

If the GOP held hearings, the judiciary committee sent a nomination to the floor with a negative recommendation, there appeared to be a modest majority to confirm (which I agree is a slim basis for a lifetime appointment to the Supreme Court), and a few senators tried to indefinitely prolong debate, why everyone concerned would have to take a position with all the facts and testimony on the table... and the voters would have their say about THAT in the fall.

Because there is no obligation to vote yes, does not mean there is no obligation to hold hearings and take a vote. There is a different between taking a considered position on a matter brought up for a vote, and throwing a juvenile temper tantrum at the mere mention of nomination. Talk about snowflakes suffering from microaggressions...

Maybe since nobody has an obligation to vote, we should just cancel the election and keep President Obama in office as a caretaker on an indefinite basis?

elwood p suggins said...

My larger point was that at least with the Obama Bunch, constitutional text is most significant. That is, except when it is not. That is true to some extent or other however, for many/most politicians of any stripe. Guess it depends on who is parsing and whose Gore is being oxed.

Speaking of Gore brings me back to 2000 in regard to Obama as a caretaker. I have previously documented Bill Clinton's efforts to somehow get a third (and fourth, and fifth??) term. With that in mind, I could actually see/hear him refusing to leave office if the election had not been settled by Inauguration Day 2001. That would have been a REAL constitutional crisis, and devil take the text.

Siarlys Jenkins said...

With that in mind, I could actually see/hear him refusing to leave office if the election had not been settled by Inauguration Day 2001. That would have been a REAL constitutional crisis, and devil take the text.

It was all covered by the Onion: Clinton declared himself president for life, and Hillary was renamed "The bride of Lord Clinton on earth." Meantime, Bush vigilantes from Texas crossed the New Mexico state line, killing a couple of hundred Gore voters in order to reclaim New Mexico's electoral votes.

But I doubt that Clinton seriously tried to secure a third term. The original intent and plain meaning of the XXII amendment is a bit too precise for that. Were you having some kind of anxiety attack, or living in the Onion's alternative universe?

But here's something to keep you awake at night. I have run across two or three different versions of a photograph of a smiling Barack Obama with the caption "What? The Republicans want to wait until next year so President Sanders or President Clinton can appoint ME to the Supreme Court? You know, constitutional law IS my specialty."

That would be poetic justice. Right now, the GOP could get a nominee calculated to make them look like idiots if they don't confirm... i.e., someone they would vote for in a heartbeat if they weren't throwing a hissy fit. By waiting, they are indeed betting "all the marbles," and its by no means a sure thing. (There is, incidentally, precedent for appointing former presidents to the Supreme Court, even former presidents who were defeated for re-election, much less ones who served to full terms. William Howard Taft comes to mind.)

elwood p suggins said...

Sorry, no anxiety attack. I don't read "Onion", whatever that is, and it sounds like I don't really need to. As you were previously advised, what I actually did was to read a book, "The Clinton Tapes" (I believe), written by Taylor Branch (I believe), an old buddy of Clinton's; they go way back together, at least as far as the McGovern campaign in Texas.

What happened was that Branch and his tape recorder dogged Clinton around for at least part of his last year in office. While I don't say that Clinton actually "seriously tried to secure a third term" by trying to push any legislation, amend an amendment, or whatever, there were most certainly serious discussions/comments on the issue.

In any event, circumvention (violation??) of the 22nd Amendment was most certainly on his mind, and he would have surely done so if he could have figured out a way, even without a crisis. My Inauguration Day scenario would almost certainly have been sufficient motivation for him to have made some moves in this regard. It is telling both as to him and to Hillary.

Charlie said...

Yes elwood, and Ronald Reagan, already well into the senescence that marked his later years, made comments in 1988 regretting that the voters had been denied the option to give himself a third term. But that doesn't amount to "seriously" trying to get one, and if Clinton wasn't pushing legislation or a constitutional amendment or calling army units into Washington, he wasn't "seriously" trying to secure a third term either.

But you don't need to worry about an Obama third term... just about the GOP putting himn on the Supreme Court. (Quite unintentionally of course).