President Obama has nominated a replacement for the late, extreme Antonin Scalia. His choice, Merrick Garland, is deliberately anodyne. His resume is impeccable, his jurisprudence middle-of-the-road. His age, 63, suggests that unlike Scalia he will not be on the bench for thirty years.
Within seconds, Majority Leader McConnell and other right wing Senators promised to ignore the nomination to death. In courtesy calls by Garland to several of them he was told not to waste his time, the Republican Senate had no intention of holding hearings, bringing the nomination to a vote or even acknowledge the existence of Garland or the President of the United States.
This would once have seemed a shocking abdication of Constitutional duty, and ironic since Republicans have spent eight years claiming Obama has exceeded his constitutional role at every turn. But in this case, who’s being anti-Constitutional? Article II, Section 2 says the president “shall nominate, and by and with the advice and consent of the Senate, shall appoint… judges of the Supreme Court.”
You could look it up. And to anyone but a fanatical partisan or weaselly lawyer, those words seem pretty clear. Obama has nominated Garland. It is the Senate’s job to advise and consent. Or not consent. But it is refusing to carry out that responsibility. A few members have decided to execute a sort of pocket veto, but the Constitution doesn’t give the advice and consent power to a few members of the Senate but to the whole Senate. If they don’t all get to vote, they haven’t done their duty.
Elizabeth Warren was quick to point out that this has been Republican business as usual since Obama was elected. The party leaders have made it their policy to obstruct the executive at every turn and to attempt to prevent it from performing its duties or allowing the usual business of government to go forward.
Thus, they have slow-walked or simply refused to approve lower court judges and have left vacant many openings on various regulatory boards affecting the commerce, health and well-being of Americans. In some cases, without a full complement, the boards are not permitted to do anything. So the people’s business grinds to a halt until a new president more to the Republican Senate’s liking can take office. Even if that takes another eight years.
This case is sufficiently high profile and unprecedented that a few Republicans have objected and want to proceed in the time-honored fashion of a hearing on the judiciary committee, a vote there, followed by a vote in the Senate in which all 100 Senators representing all the people of all 50 states would be allowed to consent to the seating of the nominee – or not. In the 227 years since the Constitution went into effect, no Senate has ever behaved in such a high-handed manner to deny a Supreme Court nominee a hearing and a vote.
In justifying their refusal various excuses have been offered. President Obama is a lame duck. No he is not. He will become a lame duck when the votes are counted on Election Day in November, but he will still be president for another ten weeks even then. An imaginary rule has been cited which claims presidents in their fourth year have no right to have their Supreme Court nominees considered. But one looks in vain to find this exception in the Constitution. Presidents possess all the powers of their office from the moment they are sworn in until their successor is sworn in, no ifs, ands, or Supreme Court exceptions.
Indeed, one third of all presidents have appointed 19 Supreme Court Justices in their final year including Hoover, Taft, FDR, Wilson, and Nixon. Six who were either defeated lame ducks or not running for re-election appointed Justices in their final year including Van Buren, Jackson and no less a figure than George Washington. Andrew Jackson and John Adams both appointed Justices on their final days in office, and Adams’ choice turned out to be, arguably, the greatest Chief Justice of them all, John Marshall.
Since Garland would replace Scalia, the popularizer of the dubious doctrines of original intent, strict construction and textualism, you’d think his acolytes would feel compelled to notice there’s no fourth –year exception in the text and no one has ever found one. It says the president shall appoint. Full stop.
Sen. Orrin Hatch, like McConnell and Judiciary committee chair Grassley, has been around so long he can remember the rejection of the nomination of arch-conservative Robert Bork. And he made it clear that the goal of the Republicans is to get even by refusing to let Obama appoint Garland. This despite resurrected film of Hatch when Garland was appointed to his present position on the Court of Appeals showing he thought the man was eminently qualified to serve. In fact, that he would be a fine addition to the Supreme Court.
How petty and shameful, in that case, to deep-six him just to settle an ancient score. And how absurd. They aren’t after Garland at all, but seek a kind of warped vengeance even though they’ve been getting it for three decades with the decisions of Powell, Rehnquist, Scalia, Alito, Roberts, and Thomas.
Furthermore, if anyone engineered the Bork defeat it was Teddy Kennedy with a warning of what a Bork adjudicated America would look like. And since Kennedy has been dead since 2009, it is too late to get even with him. In 1987, when Bork was rejected, Obama hadn’t even begun law school, so how does getting even with him make any sense?
Finally, the idea of tit for tat in this case is actually overkill. Yes, the Democratic campaign against Bork was bruising and vigorous, but it was waged on the basis of his judicial philosophy not on the basis of who appointed him. And if anyone did in Bork, it was Bork himself. His demeanor in the hearings struck many observers as arrogant, and frankly peculiar, and his paper trail was filled with damning statements and opinions that struck many as unacceptably outside the mainstream.
But despite all that, he did get the customary hearing before the judiciary committee where the vote was nine against and only five in favor. That suggested he would fail to garner a majority in the Senate and he was urged to withdraw and spare himself the embarrassment. He refused, however, and he got his vote. It was 58 against and 42 in favor. And in those now quaint-seeming days of putting conscience and country ahead of party, six Republicans voted against their president’s nominee and two Democrats voted in favor.
Why did Bork insist on a doomed-to-fail vote? Because, unlike McConnell, Hatch, Grassley and the rest of the grudge-holding, Obama-hating, ultra-partisans in the Republican Party, he believed in the Constitution. “There should be a full debate and a final Senate decision…a crucial principle is at stake,” Bork said. “The deliberative process must be restored.” That is, one ought to play by the rules of the Constitution, not the rites of brass-knuckle politics.
Surprise, Bork and Scalia, in whose names these right-wing zealots gallop out to wage jihad, believed the Constitution demands a Senate vote on Supreme Court nominees, no matter how much you dislike them, their philosophy or the president who nominated them.
In fact, it is clear that the Republicans are not acting to preserve, protect and defend the Constitution, but to screw their political opponents and advance purely partisan goals. They aren’t acting as defenders of the rule of law but as bullies trying to usurp power and to corrupt the process. They hope that they can run out the clock on Obama and that a Republican will win the White House, allowing the appointment of an even more extreme jurist to Scalia’s seat. Imagine who Bully-in-Chief, President Trump, might choose.