Associate Supreme Court Justice Antonin Scalia died unexpectedly last week and exposed the sad state of American politics. Not more than two hours had passed when Senate Majority Leader Mitch McConnell announced that “this vacancy should not be filled until we have a new president.” He also orchestrated Republican members of the Judiciary Committee to pledge to do absolutely nothing until January 2017, even when the President nominates someone. Neither Justice Scalia’s strict constructionist approach to the Constitution nor American history supports Senator McConnell.
While usually cloaking themselves in high principle, Republican Senators have now declared themselves dedicated to naked politics and sabotaging the Constitution’s instructions to the President. Article II, Section 2 of the Constitution clearly states that 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 …” The bottom line is that the voters who elected President Obama, twice, are now being told by intractable Republican Senators that their votes no longer count and that they will block the President from performing his Constitutional duties.
Republicans, pundits, commentators, and presidential candidates cite examples of Democrats making similar political arguments, but Democrats never followed through with them. Republicans have conceded the moral high ground, while twisting the legislative and judicial history of the country and ignoring the broader truths. The Senate has confirmed Supreme Court nominees of both parties in election years and in the last year of a presidency many times over the course of our nation’s history. As recently as 1988, a presidential election year, a Democratic Senate confirmed President Ronald Reagan’s nomination of Justice Anthony M. Kennedy in the final year of his administration. Just the other day, Senator Grassley (R-Iowa), who voted for Kennedy, stated, “The reality is that the Senate has never stopped confirming judicial nominees during the last few months of a president’s term.” That is true and that is how our system has worked for more than 200 years. Numerous nominations can be cited from the historical record, including a nomination by John Adams after he lost the election of 1800 which was confirmed by the Senate before he left office in March 1801.
Senator McConnell’s present recalcitrance is not an isolated substitution of politics for principle. He had famously said he intended to make the President a one-term President. He tried very hard to make that happen. When he failed, he did his best to ensure that the 113th Congress was the most feckless, fruitless, non-cooperative, and anemic in the nation’s history, passing virtually no legislation of any significance. The political imperative to block the President at all costs trumped [sic] any responsibility to govern the country. Even the simplest Presidential appointments, such as Foreign Service Officers, Inspectors General, the Surgeon General, the Secretary of the Army, and others were held up for months, regardless of need. Republicans were behind the egregious shutdown of the government in September 2013 that cost the taxpayers billions of dollars. No other modern Western government has ever been brought to its knees except by losing a war.
The media describes today’s voters as angry and disgusted at “politics.” Who can blame them? But politics wins out and Majority Leader McConnell’s obstreperous rejection of the checks and balances in the Constitution is just the latest example.
McConnell may view his preemptive shock and awe strike against any nomination as good politics, particularly if he believes the President will be so intimidated that he doesn’t make a nomination – that’s not likely. When the President does make a nomination and if the Senate doesn’t take it up, the Republican leadership, Republican Presidential candidates, and Republican Senators running for reelection will again show their obstructionist colors. This will be particularly telling if the President nominates someone the Senate may have already confirmed, or who might, for example, be a moderate Republican.
Justice Scalia was known for arguing that the Constitution is what it says it is. Senator McConnell’s strategy is not a tribute to the memory of the strict constitutionalist nor to supposed conservative (in the true sense of the word) values. Shame on McConnell for besmirching Justice Scalia in this way and shame on any of his colleagues who follow his ill-advised leadership. It remains to be seen how the voters will respond to McConnell’s and his Republican cronies’ subversion of the Constitution.
Note: reprinted with author’s permission and appeared in the printed version of the Culpeper Star Exponent on 2/27/16.