It should be
clear to even the most casual observer that the selection process i.e.
nomination and Senate approval of Supreme Court Justices is, and always has
been, a political process, that is, a shared responsibility between the
executive and legislative branches of government inevitably characterized by
partisanship. Presidents pick nominees
who they believe will enhance or protect their ideological orientation and political
preferences, both past and future. The Senate’s Constitutional responsibility
to “advise and consent” to the President’s nominations usually but not always,
follow the partisan preferences of the majority party.
Twenty-seven
of the nation’s 44 presidents, in every decade since George Washington whose
nomination of John Rutlidge failed by a vote of 10-14 in 1795, have had
nominees fail in some respect, mostly by politically motivated rejection by the
Senate vote.
Numerous
examples in the modern era support this fact.
Franklin
Roosevelt’s famous (or infamous) attempt to not only appoint justices who would
support his New Deal program but to increase the number of Supreme Court
justices to give him supporting majorities was called “ the Court Packing”
scandal.
The
nomination of Robert Bork in 1987 by President Reagan was a blatant exercise in
ideological/political conflict. The
opposition raised by liberal Democrats was vicious. Senator Ted Kennedy’s over the top comments before the Senate best
describe the hysteria driven by abortion proponents fearing that Bork would seek to overturn the
Roe vs. Wade decision of 1973. Kennedy described
Bork, a prominent legal scholar and sitting judge on the District of Columbia
Court of Appeals thusly:
"Robert Bork's
America is a land in which women would be forced into back-alley abortions,
blacks would sit at segregated lunch counters, rogue police could break down
citizens' doors in midnight raids..."
His defeat
by liberal Democrats even resulted in the creation of a new verb to describe
the political assassination of future nominees
i.e. “Borking”.
In 1991,
George H.W. Bush nominated federal judge Clarence Thomas to the Supreme
Court. Thomas, an African American was
to replace the retiring African American civil rights icon, Justice Thurgood
Marshall. This in itself was an obvious political move by Bush as it was seen
as politically necessary to maintain a “black seat” on the Court. But the liberal supporters of such a
requirement were taken aback by the fact that Thomas was a “strict
constructionist”, a legally conservative viewpoint, and again was portrayed as
opposed to Roe vs. Wade and to race based affirmative action.
Statements were made that he would be
“Borked” and an effort to do just that was made by the appearance of a former
legal associate of Thomas’s who claimed that he sexually harassed her. Her credibility however was insufficient to derail
his appointment although he barely survived with a 52-48 vote.
Now with a
controversy brewing over the replacement of recently deceased Associate Justice
Antonin Scalia, it is no surprise to see it driven by ideology and
politics. Republican Senate Majority
Leader Mitch McConnell made his position clear:
““The American people should have a voice in the
selection of their next Supreme Court Justice. Therefore, this vacancy should
not be filled until we have a new President.”
This is
pretty clear. McConnell is holding out
the hope that the Republicans will take the White House in 2016 and replace
Scalia with another conservative; there's no hiding the political motives.
The Democrats aren’t
hiding theirs either but are trying to.
Here’s the Left wing Huffington
Post:
“ the assertion that this entire year has
become off-limits to filling a Supreme Court vacancy has no constitutional
basis; it would also harm the Court itself as well as devalue the votes cast
for Mr. Obama in 2012.”
Of course a delay in considering a Supreme Ct. nomination has no
“constitutional basis”. That’s because
the Constitution contains no timing provision for the process, one way or the
other. How such a delay would “harm the
Court itself” is not explained. If it
somehow “devalues the votes cast” for Obama in 2012 then that is simply a
political tactic so common in the nomination of Supreme Court justices and not much different than a vote of rejection
by an opposing party majority in the Senate.
Huffpo
continues: “And McConnell's
partisan obstruction should now be seen by everyone for exactly it is.”
Correct,
and they do; just like the twenty-seven historical “partisan obstructions”
cited above.
“The American people should not countenance
this effort to hamstring the Supreme Court and its critical role in our nation
for a year or more.” the Post continues.
This of course isn’t
credible. The Court will continue its usual schedule with eight instead of nine
Justices. This isn’t unheard of since it
is not unusual though, fairly uncommon, for a sitting Justice to recuse himself
if he has had a prior interest in a case, thus allowing the remaining eight to
decide. Clearly the Court will not be “ham strung”.
Senate Minority Leader,
Democrat Harry Reid has also predictably weighed in:
“Failing to fill this vacancy would be a shameful
abdication of one of the Senate’s most essential Constitutional
responsibilities.”
But the Senate is
under no Constitutional responsibility to fill a vacancy with any particular
nominee and the process can take as long as needed.
The Democrat’s sense
of urgency is just as based on ideological/political motives as is the
Republican’s reluctance to proceed.
This reluctance , while motivated by partisanship
is understandable. President Obama has
already secured the nomination of two Supreme Ct. justices. Both have turned out to be reliably liberal. These two
women are also relatively young by Supreme Ct. standards and will serve for
decades under the Courts life-time tenure. There is no reason at all to think that Obama would not nominate
another “young” liberal in an attempt to create a semi-permanent ideological
bloc on the Court.
Obama’s “executive order” disdain for the legislative
component of the “separation of powers” concept enshrined in the Constitution is
a further “red flag” to a further reconstruction of the Court by him.
In fact, Obama and his
surrogates are not in a good position to lecture the Republican Senate
regarding their "constitutional responsibility". Obama has violated
the Constitution's requirement that he, as President "take care to faithfully
execute the laws". He refuses to enforce the federal laws regarding
the sale and possession of marijuana. He uses "executive
orders" to legislate in violation of existing federal laws regarding
immigration. He uses "regulations" to legislate i.e. EPA
requirements, to kill the coal industry.
While Obama has
announced his intention to go ahead and submit a nominee to the Senate, this
would also be based on political motivations. The Senate Judiciary Committee
could simply postpone hearings which the President would than use as an attempt
to demonize the Republicans in this election year. Or if the Committee agreed to hearings but
the Senate majority rejected the nominee, who might well be a minority or
female, the Democrats will use the predictable political claims of misogyny or
racism for that purpose. But why put a
nominee through the arduous process only as a political tool? If the Republicans in the Senate say there is
no hope until after the election anything else is just another political
exercise no better than the Republican delaying tactic.
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