Congressional Obstruction On Steroids
This past weekend, Supreme Court Justice Antonin Scalia died. As soon as this news reached GOP Congressional leaders and Presidential candidates, a hue and cry arose for President Obama to allow that seat to remain vacant until his successor is sworn into office next January. For his part, the President announced that he will make a nomination for Justice Scalia’s replacement in due course.
The President is absolutely correct and the Republican leadership wrong on this issue. It is the President’s Constitutional responsibility to nominate persons to serve on the Supreme Court (and other Federal courts, as well). Likewise, the Senate is charged by the Constitution to confirm or reject such appointments.
The Republicans in control of Congress, and specifically the Senate in this instance, have done an extremely thorough job of obstructing just about everything the Obama Administration has proposed throughout most of the seven-plus years he has served as President. His term runs out on January 20, 2017. They have decided that is too soon for him to have the kind of power that nominating a new Supreme Court justice to a potential lifetime appointment entails. The Constitution doesn’t say that, they do. They are already fear-mongering the disaster that will befall America if some new leftwing nut upsets the delicate balance of SCOTUS.
Since the Court starts its sessions in the beginning of October each year, the GOP hopes to prevent that seat from being occupied for the remainder of this term and a good portion of the term scheduled to start this coming October. They hope the November election will bring in a new Republican President likely to nominate someone more to their liking politically speaking. That is one of the key reasons commonly stated for electing a President. Nominating Supreme Court justices can have an effect on American jurisprudence that far outlasts the President making the nomination. Scalia himself was nominated to the Court by President Reagan, who has been out of office for nearly three decades.
Needless to say, if the departing Justice had been Ginsburg or one of the other Justices nominated by a Democratic President, the calls for delay might have been more muted, but Scalia has been so consistently extremely rightwing in his opinions that Obama would never be likely to replace him with a kindred soul. To this point, Obama has had to replace more liberal Justices with people he would be expected to nominate. The result is that the Court has been ideologically split fairly evenly 4-4 between conservative and liberal justices, with a 9th deciding vote (usually, but not always, Kennedy) crafting the judgments on the most politically decisive issues of the day.
In the past, some Democratic Senators have made similar statements regarding potential nominees by a GOP President who was nearing the end of his Administration, but they were hypothetical situations never borne to fruition by actual Court vacancies. Such tactics were wrong then just as they are now. With the major issues to be decided yet this Court term, as well as the next one, leaving that seat vacant for at least 11 months is unwise. The number of issues which would end up tied 4-4, and thus unresolved, is uncertain, but certainly serves no useful purpose for the effective governance of this country.
The record of GOP obstruction, particularly where the subject of judicial nominees is concerned, is appalling by any standards. The average length of time to fill court vacancies at all levels of the Federal judiciary has far exceeded that for any other President in recent history – even those which experienced a similar party split between the Senate and Executive branch. The total number of vacancies has been and remains at a record level, with holds being placed preventing the Senate from providing an up-or-down vote on many nominees, or even holding Judiciary Committee hearings on them. The President has been performing his job by nominating qualified individuals to fill openings. The Senate has refused to act to confirm or deny.
The tactic is one that this Congress has employed ever since Barack Obama was sworn in back in 2009. Even when both Houses of Congress were controlled by his fellow Democrats, it was all the President could do to see the Affordable Care Act implemented (amid repeated and recurring votes to repeal it) and Dodd-Frank Financial reforms passed and partially implemented. Budget battles galore have plagued this Administration’s relationship with Congress, resulting in one government shutdown and a constant threat of future shutdowns and/or national debt defaults.
As has been the case in the past, when cabinet level nominations have been stalled or threatened to die on the vine, public opinion can and has had some weight in resolving the issue. It took well over a year before Richard Cordray was finally approved to head the new Consumer Financial Protection Bureau (he was the second choice, after it became apparent that Elizabeth Warren would never be confirmed). Denying the President of the ability to nominate someone to even be considered for the position of Supreme Court Justice before his term is up should not be an option. He is well within his Constitutional rights to do so. The Senate should not keep the seat vacant in the hope that a GOP nominee will win the next election. They have a voice in the matter. To simply refuse to act at all is dereliction of duty, plain and simple.
The result of this proposed obstruction, if carried out to the satisfaction of the obstructors, will definitely become an extremely major issue – for both the coming Presidential election and the simultaneous Senate elections. This overreach on the part of the Republicans is sure to stir up energy on the part of many voters to act in a manner that will change the makeup of the Senate (perhaps returning control to the Democrats). It will certainly increase activism resulting in added impetus for those who might not otherwise vote, even in a Presidential election, to turn out to cast ballots in November. This would undoubtedly also increase voter suppression efforts on the part of the GOP. Who this would ultimately benefit the most is uncertain, but I wouldn’t want to be a senator running for re-election while being seen to be openly contributing to gridlock by refusing to do my job.
As for the Presidential campaign, this sort of stalemate, I believe, will result in higher than normal turnout to elect whomever the Democratic nominee ends up being. Knowing the future makeup of SCOTUS depends more than ever before on who wins that election should be enough to convince those who know what adding a new Scalia to the bench will mean to their future to vote against the survivor of the Klown Kar Kollision. If it turns out that way, I hope the new President makes her or his first official act the nomination of Barack Obama to fill that Supreme Court vacancy.
Further Suggested Readings: