Revered Supreme Court Justice Antonin Scalia died suddenly over the weekend. His funeral is scheduled for Saturday, and he will lie in repose at the Supreme Court on Friday.
After his death, Senate Republicans announced they would not confirm an Obama nominee to fill the position, on account that there is an ongoing presidential election campaign where citizens can weigh in on the process. This should not have come as a surprise. Scalia was a strong voice for textualism and strict adherence to the Constitution. Republican voters care deeply about doing everything within their power to replace him with someone deserving. To roll over and allow Obama to fill the vacancy with Elizabeth Warren or whoever would absolutely guarantee widespread revolt by voters — something the party cannot afford. Instead they allow the liberal block to control the court for the rest of the year in the hope that the next president will pick someone more to their liking. It’s a no-brainer.
And, as Gabe Malor wrote, there’s a ton of precedent for the GOP Senators’ stance:
Historically, many Supreme Court nominations made in a President’s final year in office are rejected by the Senate. That started with John Quincy Adams and last occurred to Lyndon B. Johnson.
But some people freaked out over the plan. Here are a few of the worst responses:
1. That’s Racist!
A feminist blogger got the ball rolling with her claim that “lame duck” was coded language meant to disparage President Obama.
“Lame duck” is just the new “show me the birth certificate”: A way to convey a belief that Obama is not a legitimate President.
Amanda Marcotte (@AmandaMarcotte) February 15, 2016
As you know, lame duck is a political term for anyone nearing his end of office. So it’s a description that has been used on every term-limited president who did not meet an untimely end.
Democratic presidential candidate Hillary Clinton made false statements about what the senators said in order to argue that they were … racist:
One way to ensure nobody takes racism seriously is to throw about charges of it with wild abandon.
2. Fighting Nominees Takes Away Obama’s Rights
Here are several reactions, including Politico’s chief political correspondent, to Mitch McConnell saying “The American people should have a voice,” so “the vacancy should not be filled.”
GOP saying a prez should be denied Const. right to appoint 2 SCOTUS is so obscene, Im leaving twitter 4 today be4 I say something Ill regret
Kurt Eichenwald (@kurteichenwald) February 14, 2016
And there are thousands more examples.
Oh, for the love of all that’s holy. President Obama can nominate whomever in the h-e-double-hockey-sticks he wants. He has that right and obligation under the Constitution, Article II, Section 2. But for those who think the Constitution is super old and totally confusing, let’s revisit the relevant text:
The President shall … have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he 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: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.
The president shall nominate, but for that nomination to become an appointment, he absolutely needs the consent of the Senate. And without the consent of the Senate, he doesn’t have the right to appoint. This is not difficult, even if schools stopped teaching these basics decades ago. We have a balance of powers, see?
3. Crying ‘Not Fair!’
Speaking of balance of power, the last few years have not been great on that count. It wasn’t that hot prior to this administration either. But President Obama has loudly and regularly announced he can’t — and won’t — work with Congress, instead using executive orders to enact what he desires. And this took place after pushing through the massive — and failing! — Obamacare “entitlement” program without even an iota of the historically required consensus. Megan McArdle noted in the aftermath of that vote:
Regardless of what you think about health care, tomorrow we wake up in a different political world. … One cannot help but admire Nancy Pelosi’s skill as a legislator. But it’s also pretty worrying. Are we now in a world where there is absolutely no recourse to the tyranny of the majority? Republicans and other opponents of the bill did their job on this; they persuaded the country that they didn’t want this bill. And that mattered basically not at all. If you don’t find that terrifying, let me suggest that you are a Democrat who has not yet contemplated what Republicans might do under similar circumstances.
Norms regarding deference to presidential judicial nominees were absolutely obliterated in 1987 when President Reagan nominated Robert Bork to the court. Here’s The New York Times defending obstruction of that perfectly qualified nominee on political grounds:
That confirmation fight was brutal, and it was lost. Subsequent fights haven’t been better. That’s the thing about destroying norms of deference and consensus between the branches of government — the destruction is permanent unless slowly rebuilt. You may dislike the Republican approach, but you can’t plausibly claim it’s unfair. Even if you set aside the precedent of not confirming justices in election years, this posturing for political power over institutional norms is absolutely the new normal.
4. The Founding Fathers All Agree the GOP Is Wrong
Progressives aren’t exactly known for their love of the Founding Fathers. But thanks to a new musical, they’re even getting behind Alexander Hamilton, warts and all. Kurt Eichenwald tries to use Hamilton to go after the GOP in his recent Newsweek column “Why Alexander Hamilton Would Hate the GOP Refusal to Consider a Scalia Successor.” It begins dispassionately:
Americans no longer deserve America. The founders’ experiment in democracy, forged in blood and scholarship, has failed.
Good try, Mr. Eichenwald. But there are problems with the execution. Jay Cost, who is writing a book on Hamilton, says Hamilton might not like the GOP plan, but that would be unsurprising since he was such a fan of executive authority. As for consensus among the fathers, he writes that they “disagreed on EVERYTHING after 1789.” He adds:
“In fact, Madison & Jefferson would probably back the GOP solely for the purpose of screwing with Hamilton. And let’s not kid ourselves. These guys were cold blooded when it came to SCOTUS politics. Notice that the charges against [Samuel] Chase were trumped up. The real motivation was ideological. So, quit the tut-tutting, mmkay?”
And another reader weighs in:
5. The Constitution Is Clear that the GOP Is Wrong
In his press conference earlier this week, President Obama said Republicans were violating the Constitution:
And we have to ask ourselves as a society a fundamental question: Are we able to still make this democracy work the way it’s supposed to, the way our Founders envisioned it? And I would challenge anyone who purports to be adhering to the original intent of the Founders, anybody who believes in the Constitution, coming up with a plausible rationale as to why they would not even have a hearing for a nominee made in accordance with the Constitution by the President of the United States — with a year left, practically, in office. It’s pretty hard to find that in the Constitution.
He repeatedly said that they had a constitutional obligation to vote, though we can commend him for not dropping in the refrain about how he used to teach constitutional law. And a good thing, as Ilya Somin points out at the Washington Post:
The Constitution is indeed clear on this issue, but not in the way the president suggests…Article II, Section 2 does not lay out any specific procedure by which the Senate can refuse its consent. It does not indicate whether it must do so by taking a vote, or whether it can simply refuse to consider the president’s nominee at all. However, Article I, Section 5 states that “Each House may determine the rules of its proceedings.” That power includes the rules for considering judicial nominations, as well as all other Senate business. Thus, so long as the Senate has established rules that allow it to refuse to vote on a nominee, it can do so — just as it can refuse to vote on bills, treaties, or any other business that comes before it.