Shunning and Sophistry

I’ve already had a say about the ongoing drama of the Scalia succession, but I have to put down a few more words about the dismaying, unprecedented and brazenly unprincipled Republican obstructionism we’re seeing. I know I sound like Jackie Chiles, the adjective-spouting lawyer from Seinfeld... but I’m not being hyperbolic. Leading Republicans are no longer making any secret of their intention, as the front-page headline in the Times puts it this morning, to “shun” any nominee President Obama might come up with. “This nomination will be determined by whoever wins the presidency in the polls,” Mr. McConnell said. “I agree with the Judiciary Committee’s recommendation that we not have hearings. In short, there will not be action taken.”

That “recommendation” came in the form of a letter by Republicans on the Committee, urging McConnell to formalize this obstructionist stance. The letter is worth reading for its bold Constitutional sophistry. Its key passage insists that “the power to grant, or withhold, consent to such nominees rests exclusively with the United States Senate.” The italics are theirs, not mine, and they signal a devious trick: now, instead of exercising their advise-and-consent function by voting on a nominee after hearings, Senate Republicans are attempting to construe the refusal even to hold hearings as a legitimate exercise of that function. The letter continues: “We wish to inform you of our intention to exercise our constitutional authority to withhold consent on any nominee to the Supreme Court submitted by this Court to fill Justice Scalia’s vacancy. Because our decision is based on Constitutional principle and born of a necessity to protect the will of the American people, this Committee will not hold hearings on any Supreme Court nominee until after the next President is sworn in on January 20, 2017.”

Hogwash. And hogwash of a bold, cynical and meretricious nature.  

Look, it is one thing to apply partisan ideological scrutiny, during hearings, to a nominee. That partisan process has its own history over recent decades, a history that is vexed enough in its own right, going back through the Bork imbroglio to the fracas surrounding LBJ’s attempt to elevate Abe Fortas to Chief Justice. Like it or not, we all understand by now that “advise and consent” means a highly partisan set-to come hearings time. In other words, business as usual – as it has come to be defined in recent decades – would be for Republicans right now to be emitting the kind of adversarial signals designed to push and pressure Obama to make the “right” kind of nominee, i.e., one they could live with, a centrist jurist of, say, the David Souter variety.  

Instead, they are simply jumping ship. No process at all. Forget about it. We won’t even hold hearings. This is a benchmark action that raises partisan obstructionism to a new level, and reasonable people know it. “What is remarkable is that the opposition is not to a particular candidate or even to the notion Obama will only nominate someone too extreme, but that he should not have any right to have a nomination considered,” comments Julian E. Zelizer, a professor of history and public affairs at Princeton University. And the Republicans are shameless enough to pretend that this is a principled action.

Reports surfacing yesterday make it clear that they felt liberated by the revelation of comments Joe Biden made, as a Senator, in 1992, suggesting it would be wrong for George H.W. Bush to nominate a Supreme Court justice in the last year of his Presidency. The jubilant use of these remarks by Republicans requires some comment. If you listen to the full version of Biden’s 1992 remarks, you’ll hear him offer promises of cooperation and ideological compromise  -- he notes the Republican Court nominees he has approved in the past -- that would be unimaginable for a leading Republican today; Biden’s ultimate tactical goal in making those remarks was to urge any Republican president, current or future, to nominate candidates that Democrats might be able to accept. It’s important to remember that there was no vacancy; Biden was not advocating any actual impending decision, but rather speaking hypothetically. Among the situations he was responding to was the hypothetical one in which a Justice already likely to resign due to age sometime in the next half-decade or so might choose to resign in the last year of a President who shared his political leanings, so that that President, and not the next one, could fill the post. In that case, according to the point of view Biden was putting forward, the sitting President should not agree to do it.

All of this is important to keep in mind, in order to understand the significant differences between what Biden was saying then and what Republicans are saying now. But even if Biden had been facing exactly the same situation McConnell and the other Republicans are right now, even if he had advocated the same kind of constitutional abdication and unprincipled power grab that they are trying to pull off, well, so what? Since when does evidence of your political adversary doing wrong constitute a triumphant justification for you to do wrong? Look, they did the same thing... so we can too! 

Does anyone wonder why people are fed up?

It’s also worth noting that Republicans are taking a pretty big political risk in this maneuver, and it’s possible that they’re badly miscalculating. First -- as the hit they took after the last government shutdown revealed -- if the American people are given the chance to identify one party as the principle cause of government dysfunction, as opposed to “everyone in DC,” they will do so. Americans don’t mind a partisan set-to in these situations, but they tend not to like the game being canceled before it begins, and the Republicans may pay a price for refusing to let the process go forward. Second, if they really do this, they had better hope they win the fall election. My own guess is that Obama will nominate a moderate (or would have, anyway, if Senate Republicans had been willing to hold hearings), knowing that the only way to get a partisan and obstructive Republican majority even to consider approval is to nominate someone who doesn’t set off ideological alarms. But if the Republicans refuse to hold hearings, and then lose in the fall – as seems not at all unlikely – then they are looking at a President Clinton or Sanders, with a fresh mandate and a good deal of pent-up annoyance, throwing one very liberal judge after another at them, just daring them to obstruct further. So the move they’re making now, in addition to being unprincipled, reckless and inflammatory, also looks pretty stupid.

But more than that, it’s depressing. This passage from the Times article sums it up pretty well:

Senator Chris Coons, Democrat of Delaware, said he had urged the White House to select a centrist candidate with impeccable credentials for the court. He urged Republicans to allow the process to move forward, and said he feared the breakdown that could result should they ultimately refuse. Holding a confirmation hearing “shows respect and deference to the constitutional role of the presidency,” he said. If Republicans refuse, he continued, “it would be just one more reminder to the average American and to the world that our carefully constructed constitutional framework is at risk of failure.”

I'll say.


Rand Richards Cooper is a contributing editor to Commonweal. His fiction has appeared in Harper’s, GQ, Esquire, the Atlantic, and many other magazines, as well as in Best American Short Stories. His novel, The Last to Go, was produced for television by ABC, and he has been a writer-in-residence at Amherst and Emerson colleges. 

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