Nel's New Day

February 18, 2016

GOP Hypocrisy Expands with Scalia’s Death

Last weekend’s events—the death of Supreme Court Justice Antonin Scalia and the GOP presidential candidate in South Carolina less than two weeks before that state’s primary—occupied the media. The Saturday night debate showed the shift in presidential debates: in the past, they focused on the people on the stage, but the crowd attending the debate is now part of the performance. Ugly heckling and booing caused Political Wire’s Taegan Goddard to comment that the show seemed to be “taking place in a Roman coliseum,” and Republican David Frum bewailed that the audience  was “joining in the bloodbath.”

Prominent conservative pundit Rich Lowry called the debate a “train wreck,” and Frum asked if the GOP looks “like a party ready to govern anything.” GOP pollster Frank Luntz, who taught the conservative side how to speak in loaded language that hid their efforts to destroy democracy in the nation, said:

“Seriously, this is insane. The GOP is destroying itself tonight, and they have no one to blame but themselves.”

Trump has set the tone for debates. Kasich tried to stop the demolition derby and Ben Carson commented on how few questions he got, but the other four tried to out-insult the others.

While the candidates battled about other issues, they declared consensus in their firm belief that President Obama lacked the right to nominate a replacement for Justice Scalia, who died February 13, 2016, the same day as the debate. An hour after the announcement of Scalia’s death, Senate Majority Leader Mitch McConnell (R-KY) said that the president, with 11 months left in his second term, should leave the nomination to the next president and promised that the Senate would not acknowledge the nominee if the president were so foolish as to making an appointment.

Of the 54 Senate Republicans, 33 opposed any appointment this year. They demand that any nominee continue Scalia’s “legacy”—one of the most conservative on the Supreme Court. Eleven senators indicated a possible willingness to consider a nominee, and another ten are silent on the issue. Seven of the 11 Republicans on the Senate Judiciary Committee, the first stop for any judicial nomination, concurred with McConnell by announcing they would not consider any appointment from President Obama.

Only a decade ago, however, McConnell said:

“Any President’s judicial nominees should receive careful consideration.  But after that debate, they deserve a simple up-or-down vote. . . . It’s time to move away from advise and obstruct and get back to advise and consent.  The stakes are high . . . . The Constitution of the United States is at stake.  Article II, Section 2 clearly provides that the President, and the President alone, nominates judges.”

He had held this position for the previous 35 years. In 1970, McConnell wrote:

“Even though the Senate has at various times made purely political decisions in its consideration of Supreme Court nominees, certainly it could not be successfully argued that this is an acceptable practice.

“The proper role of the Senate is to advise and consent to the particular nomination, and thus, as the Constitution puts it…This taken within the context of modern times should mean an examination only into the qualifications of the President’s nominee.”

The qualifications, according to McConnell, are competence, achievement/distinction, temperament, ethical behavior, and no criminal record. Nothing about political ideology. McConnell voted for a Supreme Court justice late in a president’s term, supporting Justice Anthony Kennedy, nominated only 13 months before the end of Ronald Reagan’s second term. Over a century has lapsed since the president failed to nominate or the Senate failed to confirm a nominee in a presidential year because of the impending election.

In the past, McConnell has stated other rational—and accurate–positions that disappeared after Barack Obama was elected president:

“The President is presumably elected by the people to carry out a program and altering the ideological directions of the Supreme Court would seem to be a perfectly legitimate part of a Presidential platform. To that end, the Constitution gives to him the power to nominate.

“Even though the Senate has at various times made purely political decisions in its consideration of Supreme Court nominees, certainly it could not be successfully argued that this is an acceptable practice.

“The true measure of a statesman may well be the ability to rise above partisan political considerations to objectively pass upon another aspiring human being.”

Reagan supported replacement of justices in the last year of a presidential term:

“The Federal judiciary is too important to be made a political football. I would hope, and the American people should expect, not only for Judge Kennedy’s confirmation but for the Senate to get to work and act on 27 other judicial nominations that have been left in limbo for quite awhile now.”

In July 2008, during the last year of George W. Bush’s second term, Republicans convened a hearing entitled “Protecting American Justice: Ensuring Confirmation of Qualified Judicial Nominees” in reaction to the “Thurmond Rule,” a demand from racist senator, Strom Thurmond, that a president be limited by time to nominate a justice. Almost half a century ago, Thurmond tried to make this mandate in retribution to President Lyndon Johnson’s Civil Rights Act by blocking the president’s nomination of Justice Abe Fortas as Chief Justice in 1968. No rule was passed, and Thurmond said gave the last six months as the timeline for no nominations. Comments from participants in the 2008 hearing:

Sen. Chuck Grassley (R-IA):

“[The idea that July 2008 would trigger the] Thurmond Rule ­­– that’s just plain bunk.  The reality is that the Senate has never stopped confirming judicial nominees during the last few months of a president’s term.”

Eight years later, Grassley said:

“The fact of the matter is that it’s been standard practice over the last nearly 80 years that Supreme Court nominees are not nominated and confirmed during a presidential election year… it only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court Justice.”

Sen. Lamar Alexander (R-TN) said in 2008:

“There’s no excuse for not considering and voting upon a well­ qualified judicial nominee in the United States of America today…  [J]ust because it’s a presidential election year is no excuse for us to take a vacation.  And we’re here.  We’re ready to go to work.”

Now, Alexander wants to allow the next president to fill this lifetime appointment to the Supreme Court.

Sen. John Cornyn (R-TX), in 2008, wanted the two parties to work together “to confirm qualified men and women to the federal bench” in an election year–“to establish that regardless of the next president’s party, the nominees will be treated fairly and on the basis of their qualifications, and not on the basis of ancient political squabbles.”

Mitch McConnell (R-KY) echoed these ideas:

“I think it’s clear that there is no Thurmond Rule.  And I think the facts demonstrate that.”

GOP Sen. John McCain said in 2005 that if Democrats should “win the next presidential election,” they should choose Supreme Court nominees because “that’s the way the system works.” McCain has now reversed this opinion.

In the Washington Post, Paul Waldman wrote about the change in the GOP:

“[Republicans] haven’t just grown more ideologically conservative in recent years, they’ve also grown more procedurally radical. Again and again, they’ve decided that the system of formal and informal norms that make the government work can be discarded if it becomes inconvenient.”

Republicans started out with the argument that there is no history of a president nominating a Supreme Court justice in his last year. Once that excuse was totally debunked, they decided it would be cruel to the nominee because Senate will destroy that person’s reputation. Sen. Ted Cruz (R-TX) said:

“I think that hearing would end up very politicized. And I don’t think it would be fair to the nominee.”

Sen. Pat Toomey (R-PA) made a similar argument:

“[I]t might be just as well not to have a hearing that would, sort of, might mislead the American people into thinking that this is just about the qualifications of the candidate, because it’s bigger than that.”

One reason for the shift in attitude may be a fear of the Senate reverting to a Democratic majority. Of the 36 senatorial positions up for grabs in the 2016 election, 24 are Republican. Of those 24, six are in for difficulty in being re-elected.

Another concern may be popular opinion, as seen in the results of the conservative Rasmussen poll indicating that 51 percent of likely voters believe that Obama should nominate Scalia’s successor, and 53 percent believe the Senate should not “reject or refuse to consider” the nomination. Only 35 percent favor McConnell’s blocking the president’s constitutional duty to appoint Scalia’s replacement.

Yet the cracks appearing in McConnell’s control of his Republicans seem to be disappearing,  and GOP senators are turning toward rejecting any nominee. For example, Sen. Lisa Murkowski (R-AK) earlier stated that the Senate should hold hearings. Her shift in opinion was revealed in tweets urging President Obama to “follow a tradition embraced by both parties” by yielding to the next president:

“If [the president of the United States] ignores precedent, I believe extraordinary circumstances give the Senate every right to deny the nominee an up or down vote.”

The biggest irony about the argument surrounding an appointment to replace Scalia this year comes from the justice’s famous “originalist” view of the Constitution, his belief that laws and judicial rulings in the 21st century should following the text of the Constitution exactly as the Founding Fathers intended. Article II Section 2 of the Constitution states that the president is responsible for nominating members of the high court. Nowhere does the Constitution state “except when a Democratic president has almost a year to serve.”

As Frank Rich wrote:

“By refusing to act on the Scalia vacancy, the [GOP] party will once again brand itself as the party of obstructionism, government dysfunction, and animosity toward the growing majority of Americans who do not fit its predominantly white male demographic.”

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