How Far Can We Drive the Country to Ruin?

Justice Antonin Scalia died sometime during the night Friday, reportedly of natural causes. Whatever one thought of his very conservative view of the law — based on what is often called an “originalist” view, or one where the original words as written are the law, not what the intent might have been or changes in community standards might be — he was also reported by those who knew him to be brilliant, funny and a good friend.  I extend my condolences to his family and friends who are surely reeling from the shock.  Although I rarely agreed with his votes or opinions, one can still recognize his innate kindness and abilities.

Unfortunately, such understanding of individuals as individuals, and their inherent abilities, does not extend to the Republicans in the United States Senate.  While one might understand the opinion of those on the campaign trail vying for the presidency — all of whom think that they will one day be president and should have the ability to appoint a Justice to the Supreme Court — I do not understand the majority leader of  the Senate claiming that the president has no right to appoint a replacement for Justice Scalia. Only an hour or so after the announcement of Justice Scalia’s death, Senator Mitch McConnell (R-Ky) announced that “this vacancy should not be filled until we have a new president.”  Senator Chuck Grassley (R-Iowa) echoed Senator McConnell’s call to wait until the next president is sworn in.  This is significant as Senator Grassley is the Chair of the Senate Judiciary Committee and can prevent a vote on a nominee within the committee and thereby prevent the entire Senate from voting.

I point out that a divided Senate confirmed Ronald Reagan’s nomination of then U.S. Court of Appeals Judge Scalia to the Supreme Court by a vote of 98-0.  Things were not perfect in the Senate then, but it was still the era where if a nominee was eminently qualified, like them or not, the president’s pick was his pick.

This unprecedented and outrageous stunt announced by Senators McConnell and Grassley has many ramifications and probable consequences.  One can only surmise that the personal animosity towards President Obama is so strong, that all of those Senate Republicans who espouse following the Constitution as their guiding light seem to have missed the part about the Supreme Court.

First, let’s simply look at the calendar.  If a new president knew exactly who his or her nominee was going to be and announced it the day that he/she is sworn in as president on 20 January 2017, and assuming the modern average of about 67 days for confirmation hearings and votes, we would still not have a new Justice until roughly the end of March or early April 2017.  About 13 or 14 months from now! Talk about the slow wheels of the legislative process.  It is also unprecedented in our nation’s modern history.  Not to mention that it leaves many important cases coming before the court this year susceptible to a 4-4 tie vote.  More on that later.  If this happened in September, then it might be reasonable to wait, but it is only mid-February, with about a year left in office for President Obama.  Is he to do nothing until next January?  Does he have no right to execute his office under the Constitution? It would be unprecedented for a sitting president to abdicate his Constitutional powers to the demands of the legislative body and turn over his power to appoint justices to the Senate. The Senate’s job is to “advise and consent” to presidential nominees, not to hijack presidential powers.  Let them work with the White House and see if there is a compromise candidate for the court.  Let each branch do what it is designed to do.  Senator McConnell and other Republicans argue that elections have consequences.  I agree. We elected President Obama to do a job.  Twice.  He should do it.

Second, the Senate Majority Leader’s announced plan to block any nomination from the president presumes that the individual is not qualified, merely by the fact that President Obama nominates that person.  And they do not know who the nominee will be.  I sincerely hope and expect that the president goes ahead with a nomination and decides to “leave it to the American people” (the catch phrase of choice for so many of the obstructionists) to see who is following the Constitution and doing their job. And it’s not exactly like the Senate calendar is jammed or packed with other pending legislation.  Take a look and it is apparent that the Senate has plenty of time to fairly proceed with the process. (You can find the proposed calendar here.  Note that being in session doesn’t mean they are actually working as most come in from their home states on Tuesday morning and go home on Friday.)  To block a nomination when the nominee is unknown makes no sense. Hold hearings.  Vet the nominee.  Find out how qualified that person may be and then vote. Making demagogic pronouncements within an hour of the loss of a Justice is ridiculous.

Third, there is a presumption in the Republican Senator’s actions that the next president will be a Republican.  Perhaps.  The next president could also be a Democrat. Does the Senate think that it will just wait another four years for another presidential election to fill the vacancy?

Fourth, the practical impact of not filling the vacancy for over a year could be tremendous and further divide our already politically divided country.  A 4-4 tie vote in the Supreme Court leaves lower court decisions in place.  This has many possible consequences.  The Supreme Court is set to make many important decisions in the upcoming year with scheduled cases including ones impacting abortion, The Affordable Care Act, one-person one-vote, affirmative action and a host of others.  We the people may not like what those lower cases decide and want the Supreme Court to weigh in.  In a 4-4 tie they have no impact.

More importantly, many Supreme Court cases are taken on because lower courts often pass down conflicting judgments.  For example, if the U.S. Ninth Court of Appeals (the western U.S. including California) hands down one decision, and the Eleventh (the southeast including Florida) hands down a conflicting decision, which is the rule of the land? One nation of law-abiding citizens is no longer the case as the “law of the land” is different depending on where one lives.  One function of the Supreme Court is to pull disparate court decisions together for a unified interpretation of the law. Such a scenario of conflicting opinions is not out of the realm of possibility when it will be over a year before the Supreme Court is at full strength.

I am many things, but I am not a political strategist.  However it seems to me that the Senate Republican’s strategy to stonewall the president on nearly everything, but especially on the nomination of a Supreme Court Justice could backfire.  Congress is already considered by many of us to be doing nothing to help the American people.  Prognosticators say that depending on who the two major party nominees are, that Republican control of the Senate could be in jeopardy.  It seems to me that if the voters do not see their Senators doing much of anything for a year, coupled with a few of the lower court decisions becoming the law of the land in a series of 4-4 votes in the Supreme Court, that some are going to take it out on their sitting Senators, especially in “blue” or “purple” states where Republican incumbents will be challenged by strong Democrats in the fall.

We will see how things actually unfold.  I am not optimistic that the Senate will move forward and conduct the business that we elected them to do.  Now not only will we have a divided legislative process, but the complete lack of cooperation between the Senate and the president will be exacerbated by a potentially hog-tied Supreme Court.  Hog-tied only due to the personal animosity towards the president, which apparently takes precedence over actually doing their job.

It will be a long, poisonous year.  I comfort myself in knowing that in our history we have been through some extremely divisive internal crises (Civil War anyone?) and come out the stronger for it. I hope that we enter 2017 with a new sense of purpose.  It is a shame that we will have to waste an entire year first.