“The Congress is a dysfunctional institution; it’s broken. One of our three branches of government is broken.”
— Carl Bernstein
What a week – Trump won Nevada (& Carson somehow still sees his lackluster showings as wins), bully Christie endorsed bully Trump, and the GOP controlled Senate continued, against all common sense, to refuse to even entertain the possibility of talking to any nominee that President Obama puts forth to replace the late Antonin Scalia on the Supreme Court. One hopes that this is just posturing given that no nomination has yet been made.
Which is, of course, why I’m here…
For those of you that are not familiar with the finer points of the US Constitution (& I think that may include some members of Congress), the responsibilities of the president in regards to the subject would seem to be clear. Article 2 of the constitution discusses the establishment of the office of the president, and the duties thereof. Section 2 specifically addresses the responsibility of the president to nominate supreme court judges (among others).
“He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”
The GOP members of the senate, continuing a trend of inaction that they began in 2009 at the start of the president’s first term in office, have already announced – repeatedly – that they will not even agree to meet with any nominee that the president might put forth. All the while pushing an erroneous talking point that presidents don’t make appointments in the final year in office. Um, actually, yes, they do. And from a constitutional perspective, it seems to be a duty, not an option. And although supreme court openings don’t often fall in the last year, there is a very consistent precedent for the president to nominate, and the senate to at least pretend to do their jobs. Because we all know that they don’t have to confirm any nominee that the president might put forth – but for the sake of not looking like the same whining imbeciles that shut down the federal government two years ago, they should probably have shut up and gone through the motions.
But the GOP establishment is kind of caught between the proverbial rock and hard place. Approximate 56 percent of Americans polled think that the president should be able to nominate whoever he wants – these numbers are consistent even across polling done by conservative outlets. But the ideologues in the party, and the extreme right wing donors, want to see a more conservative court than the one they have, and there is concern that the president would not nominate anyone that fits their ideal – and that’s probably true because the court should have people that understand, and respect, the constitution since their job is to interpret the constitutionality of laws passed by congress. The belief of the extremists in the party is that the court is more important than the senate, so they see the risk of losing the majority in the senate over this issue as being less than the risk of an Obama appointee. Who needs legislators when you have judges? For people who complain about ‘activist judges’ that ‘legislate from the bench’ when they make decisions that you disagree with, you sure do have an interesting view of how to pick justices. And for self-proclaimed ‘constitutional originalists’, you seem to have a poor grasp of the document. Try reading it sometime – it’s actually quite short and easy to digest.
Unfortunately, only the GOP ‘establishment’ seems to be aware of the simple fact that not only is the senate at risk in November – when approximately half of the seats are up for grabs, but so is the presidency, perhaps more so because it is still very hard for sane people to imagine Trump pulling off the general election & yet, he may well be their candidate. So by drawing their line in the sand on this issue, they run the risk of not being in a position of still not having an control over the nominee. And what then – do they continue the pattern of obstruction (even if they lack a full majority) for another 4 years? And how many more vacancies do we end up with in that period (since the ages of the justices are definitely an issue)?
And they run a more immediate risk as well – the court does not stop work when they are short-handed (though they do take the summer off every year). But now there are 8, and with an even number, and a fairly even ideological divide, the potential for split decisions increases. And a split decision is effectively a decision in support of the lower court’s ruling – so if you’re hoping to use the supreme court to allow you to – oh I don’t know perhaps consider your corporation’s sincerely held religious beliefs to be more important than medical fact? Then you may well find that it won’t. And oddly enough, you’ll probably find that it still considers marriage equality to be the law of the land.
Sorry, but I have to ask — what the hell is it that you are really gambling here? That Marco Rubio will somehow push past Trump and Cruz and be able to convince an increasingly irritated electorate that he is moderate enough to win an general election, but extreme enough to provide the fringe with hope for a corporatized theocracy? And that you will find an acceptable nominee for the court who is enough of an ideologue that they’ll ignore the very document that they are meant to be interpreting? And just how long do you think you can leave that seat vacant until you have your dream nominee? The youngest member of the court is Elena Kagan at 55. Ruth Bader Ginsburg is 82. The other six surviving justices range in age from 61 to 79 – the odds are not in your favor. Or does shrinking the federal government extending to eliminating an entire branch? Once again, I respectfully ask that you do your jobs. Based on the last several years, I fear that is unlikely, but I’m asking anyway.
“The people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived.”
— James Madison
Photo of the US Capitol building circa spring 2012