On Scalia vacancy, Senate ducks its clear constitutional duty

Constitution

Within hours of the death of Antonin Scalia, the hypocrisy was thick. While Republicans rushed to praise the late justice for his supposed allegiance to the letter of the Constitution and to its original intent, they also rushed to make clear that they themselves had no intention of abiding by either the letter or intent of that same document.

Article II of the Constitution makes clear that president is elected to a four-year term, and that the president “shall nominate, and by and with the advice and consent of the Senate, shall appoint … judges of the Supreme Court.” That language notwithstanding, Senate Majority Leader Mitch McConnell announced that the Senate would not allow that constitutional process to play out, and would refuse to act on a nominee to replace Scalia.

In his statement, McConnell made it quite clear that it doesn’t matter who that nominee might be, or how well-qualified he or she is by legal training, judicial temperament, intelligence or experience. He would not allow the Senate to offer its advice or consent, and by that refusal he would shut down the process that has stood this nation in good stead for well over two centuries.

As Amy Howe points out at Scotusblog, the history is clear. Six previous times since 1900, the Senate has done its duty by voting to confirm a Supreme Court nominee in a presidential election year. It has never even been a serious question. And as Domenico Montanaro of NPR reports, the longest wait from the moment a nominee was named until he or she received a Senate vote was 125 days, back in 1916.

As of today, Obama has 340 days left in his presidency. This is not October or November, with only a few remaining days in his term. This is the middle of February.

We all know what’s happening here. We know because we’ve seen it over and over again. We saw it a few days before Scalia’s death, when the House and Senate budget committees refused to even let the White House budget director present the president’s budget to Congress, as tradition and precedent require.

From the very beginning, McConnell and his fellow Republicans have refused to accept this president as legitimate. They have questioned his birthplace, they have questioned his loyalty and patriotism, they have whispered about his religion and parentage. They have treated him as some bizarre and temporary aberration to be obstructed at every turn rather than as the legitimate selection of the American people. Even Obama’s re-election by some five million votes — a re-election that they were certain could never happen — didn’t change their attitude toward him. This is merely an extension of that behavior.

It’s also important to point out what a big political gamble the Republicans are taking. They are defending 24 Senate seats this year, many in states won by Obama. The Democrats are defending only 10, and are favored in all 10. Voters in the purple states that will decide control of the Senate may not look kindly upon a party that refuses to let the chamber perform its basic constitutional duties for almost a year. Anybody wondering whom to blame for the Washington stalemate now has a pretty good answer.

Because the Senate won’t act, the president can’t fulfill his constitutional duty of filling a court vacancy. Because the Senate won’t act, leaving an evenly divided court, the judicial system will be compromised and important legal questions will go unanswered. McConnell’s decision harms the Senate as an institution, it harms the court, it harms the country and it may also harm his own party.

And the truth is, he is caught in a trap of his own making.

If Obama had reason to believe that his nominee would get a fair hearing, he would probably choose a moderate who at least had a chance of wooing enough Republican support to be confirmed. Two possibilities are Sri Srinivasan, an appellate judge confirmed three years ago with a unanimous Senate vote of 97-0, and Jane Kelly, an appellate judge confirmed by a 96-0 vote.

But if no vote is forthcoming this year, the dynamic changes. If a Democrat wins the White House in November, the new president won’t be nearly as accommodating in the choice of nominees, particularly since a Democratic presidential win would almost certainly produce a Democratic Senate as well. With their obstinance, Republicans could end up getting a new justice as far to the left as Scalia was to the right.

I’m sure that McConnell and his aides have thought about that, but they simply don’t have the freedom to think or act in such strategic terms. They are handcuffed by the extreme, irrational anti-Obama animus that he and other party leaders have created as a means to keep their voters loyal, an animus that makes it impossible to do the right thing, the smart thing, the constitutional thing.

 

 

Reader Comments 0

542 comments
lvg
lvg

White Southerners on the right  (including a writer at AJC) are lamenting  the fact that Robert Bork got denied his  nomination to the Court when his name was submitted by Saint Ronald as a moderate conservative. Like Scalia, Bork found all civil rights laws anathema and would have tried to appease that angry white Southern vote the GOP covets until today by undoing those evil laws. 


Seehttp://www.thenation.com/article/bork-legacy/


I assume if Cruz gets the nomination, Roy Moore will be on his short list.

Visual_Cortex
Visual_Cortex

@Donnie_Pinko

why that means nobody will see that well-crafted manifesto I just posted.

Probably a good thing.

Visual_Cortex
Visual_Cortex

For the record, I'm fine with dumping the rhetoric about our Senators using the Constitution as toilet paper, because

a) our Senators are basically vain, horrible people anyway and don't care, and

b) they have a point, they don't gotta do what they don't gotta do.

What Democrats have to do is point out how the Republican senators are being exceptionally vain and horrible, and that they've crossed a Rubicon here by hyper-politicizing the SCOTUS appointment process.

I guess mostly I'm saying, if "Senators get to decide if a SCOTUS appointee's politics are even just a teensy bit wrong for their base, they don't have to pretend to be serving some higher purpose in rejecting that appointee. It's ok to say 'I am a vain, horrible person and I'm doing this because it happens to benefit me personally. C YA, wouldn't wanna be ya, et cetera.'"

Democrats can leverage this to their advantage in a general election if they decide they want to be Good At Their Jerbs.

Dunno if they do, though. I'm not sure what high level Democrats really want.

DawgWhistle
DawgWhistle

You're right as usual Jay. The continued intransigence of the Repugs will be on display - in bold-face and neon - for the entire year...what better motivation to get the kind of huge voter turnout Democrats need than this? The 'news' media will lead with every example of the failure of the court to properly act, followed by blaming the Senate for that failure. Every 'get out the vote' ground game wil beat the drums pointing out to every segment of our society how this hate-filled act has hurt them...of course it couldn't be as hurtful as their putting that nincompoop Geedubya in office, but that's another story. Expect the Reps will use this to excite their base, but with the nationwide demos, and especially in those Purple states, they are doomed to lose out. Who knows, maybe Scalia's passing might end up being the thing that buries the Republican Party, and hopefully Consevatism itself, for generations and generations to come.

Donnie_Pinko
Donnie_Pinko

This bizarre elevation of a simple court to a kind of Grand Tribunal made up of 7 Grand Inquisitors with the power to Decide Truth, and a fetish-like cult of document worship (Constitution), the terrorist in a robe who just kicked the bucket was right in the middle of all of it.

NWGAL
NWGAL

If the President is not allowed to function as President in his final year in office, then shouldn't Senators and Representatives be forbidden to vote the last year they are in office?

honested
honested

@NWGAL 

Well, aside from ACA repeals, I think they are already forbidden to vote.

Kamchak
Kamchak

RIP Denise Katrina "Vanity" Matthews

tireOfIt
tireOfIt

The entire current legal strategy of the conservative legal movement has been stymied by the death of Justice Antonin Scalia. His unexpected passing robs conservatives of the 5-4 advantage they had on the Supreme Court at the very moment they were making arguably their most aggressive play yet to cement some their most cherished and longest sought legal gains, in areas like abortion, voting rights, and affirmative action.

+


God works in mysterious ways.

honested
honested

@tireOfIt 

Now let's just hope that 'god' is ready to get busy cleansing the scourge the so-called conservatives have wrought upon the United States!

Peachs
Peachs

So called conservatives should be a label that follows the hotshots to their graves..

Peachs
Peachs

Once again I recommend a very involved autopsy, or Gowdy will have Hillary back for a 11 hour drilling!

Peachs
Peachs

When the judge gets judged he may find God is not as sympathetic to politics being mixed with religion, as the judge seemed to be.

Donnie_Pinko
Donnie_Pinko

Seriously, I think we should all stop our lives and fast 5 days wearing in sackcloth and ashes.

A great man has died!

Peachs
Peachs

Why do we consider Scalia a great legal mind? It is like considering George Wallace an academic..

rimsky
rimsky

@Peachs Why do we consider Scalia a great legal mind?///////

It is like comparing climate change deniers to Stephen Hawkins.

Peachs
Peachs

The right redefines basic language to the point of dog whistles, and then wonder why government does run like the manual says..

Peachs
Peachs

I found him most disgusting in a very common way, very familiar to the brusque behavior of a Trump, and celebrated by the right wing as legitimate conduct.

breckenridge
breckenridge

It does not matter since Trump is going to be able to nominate Cruz to take his place after the election. 

Why yes! That's exactly what's going to happen!

Boy oh boy you sure can find some silly nonsense on this here blog. 

Donnie_Pinko
Donnie_Pinko

So Barack Obama calls the departed right wing thug Supreme Court justice a "towering legal figure" . 

Hm. Interesting.

Visual_Cortex
Visual_Cortex

@Donnie_Pinko

Interesting that a President feels compelled to cough up nice-sounding things to say about dreadful individuals who have recently deceased?

I guess.

MaryElizabethSings
MaryElizabethSings

"There has not been a year long vacancy in the Supreme Court since the Civil War.  This is what the Republicans now want to do to our nation," said Rachel Maddow, this evening, on her televised show.


It seems to me that today's conservative Republican Party feels entitled to constant control or rule of this country.  Therefore, when Democrats are in power, these Republicans tend to think that that is an illegitimate Presidency or Congress.  Something is psychologically out of balance with those who think in that manner, and that entitled idea of their right to power is destroying the democratic principles of our Republic.  We MUST elect a Democrat as our next President.  Hillary Clinton is the candidate best equipped to defeat Donald Trump.

Donnie_Pinko
Donnie_Pinko

So by the way what day does the robed thug lie in state? 

When does he roll down the streets of Washington in a flag draped caisson? 

Do we all stop our lives for a day in remembrance of this great figure of American jurisprudence? 

Dress in black?

Visual_Cortex
Visual_Cortex

@Donnie_Pinko

Do we all stop our lives for a day in remembrance of this great figure of American jurisprudence? 

No.

THBAEOSATSQ.

Donnie_Pinko
Donnie_Pinko

If you drape a black robe around a thug, is he still a thug?

rimsky
rimsky

@Donnie_Pinko A robe does not make a man's character neither does a hoody make a kid's character.

xxxzzz
xxxzzz

@Donnie_Pinko Well if you said "she" instead of "he" it would have been appropriate.  Mugging the constitution, the rule of law, the will of the people.  Sounds like 3 thugs-Ginsburg, Sotomayor and Kagan.

MaryElizabethSings
MaryElizabethSings

Okay, here is the song from "Hamilton" which is entitled, "The Election of 1800."  This gives a pretty good description of how Hamilton finally threw his support to Jefferson, "because Jefferson has principles, although different from mine (Hamilton), and Burr has none."  One of the greatest ironies in American history was that Hamilton made Jefferson (bitter enemies under Washington) our 3rd president through his support of Jefferson over Burr (who became Jefferson's VP for Jefferson's first term).


https://www.youtube.com/watch?v=AUOfpIPztKM&list=PLUSRfoOcUe4avCXPg6tPgdZzu--hBXUYx&index=42

Kamchak
Kamchak

Donald Trump threatens third-party run over ‘unfair’ treatment by Republican party

Billionaire says national committee is ‘in default’ of pledge amid complaints that he spotted ‘special interest people’ in debate crowd on Saturday

Republican frontrunner Donald Trump made a veiled threat on Monday to launch a third-party run as an independent candidate, saying Republican leaders are “in default” of an agreement to treat him fairly.

Speaking at a campaign event just outside of Charleston, South Carolina, the billionaire hinted that he may still run an independent campaign for president, despite a pledge he signed last year to stay within the party.

Oopsie

MaryElizabethSings
MaryElizabethSings

Here's a clip from "Hamilton" in terms of lyrics (rap) which I think most of you would enjoy.  Take a listen after the advertisement. (Actually, Hamilton's mother was not a prostitute, but had inherited land and nice business from her father with some aristocratic roots from Great Britain, I believe.  However, Hamilton's mother married very young (not Hamilton's father) who took her money, land, business endeavors, but she had internal strength like her son and found a way to start another business.  Hamilton wrote an essay when he was about 16 that was published and so impressed the people in the Caribbean that he was taken in by a wealthy man (who may have been his blood father) who sent him to NYC to study and grow.


https://www.youtube.com/watch?v=Zp9HUc9HraQ&list=PLUSRfoOcUe4avCXPg6tPgdZzu--hBXUYx

Kamchak
Kamchak

http://www.infowars.com/will-texas-governor-call-for-investigation-into-scalia-death/

Will Texas Governor Call for Investigation into Scalia Death?

http://www.infowars.com/former-intel-officer-suspects-foul-play-in-death-of-antonin-scalia/

Former Intel Officer Suspects Foul Play in Death of Antonin Scalia

"Who dies with a pillow over their head?"

http://www.infowars.com/supreme-court-justice-scalia-dead-is-thomas-next/

Supreme Court Justice Scalia Dead – Is Thomas Next?

Alex Jones

ROFLMAO!

lvg
lvg

@Kamchak Cruz did it - Scalia refused to guaranty he would rule that Cruz was a natural born citizen.

StraightNoChaser
StraightNoChaser

@td1234 @StraightNoChaser @lvg @Kamchak
If voters wanted Trump to nominate a justice he would have made it out the gate when he ran in 2012.  Voters intended for President Obama to nominate the next Justice that's why he was elected and Trump did not even win the nomination in 2012. 

td1234
td1234

@StraightNoChaser And Democrats lost the Senate in 14 because their voters are just to lazy or apathetic to vote. Elections have consequences and the President is not a dictator. The Senate plays a critical role in appointments and treaties.  

StraightNoChaser
StraightNoChaser

@td1234 @StraightNoChaser Never said he was a dictator and he has not acted like one.  His predecessors on the other hand that's a different story.  Changing the senate does not change that fact, they were not elected to be President of the United States, he was so get over it.

Doom Classical liberal
Doom Classical liberal

@StraightNoChaser @Doom Classical liberal @td1234


"Sure it doesn't, he's only the most powerful man in the world and a whole lot of people hate that fact"


U.S. presidents have always been hated. Hopefully, you're not suggesting that there's nothing more at play here. If so, that would merely echo what td was saying earlier.