Tuesday, February 23, 2016

No Senate Supreme Court Blockade Has Happened in American History

Many on the right and lazy journalists who care more about appearing "fair and balanced" are striving to claim that the unprecedented obstructionism by Republican Senators is anything but out of the norm.   But as a piece in New York Magazine explains, what Senate Republicans are doing by announcing that they will not consider any Supreme Court nominee put forward by President Obama regardless of who the nominee might be is, in fact without precedent in American history.  If one reads the relevant portion of the United States Constitution, it provides that the president SHALL nominate a nominee to fill an opening on the Court.  In legal parlance, shall means that the president has no discretion.  He MUST put forward a nominee. As for the Senate, it is then to advise and consent and hold hearings on the nominee.  In short, Senate republicans are subverting the Constitution - even though their oath of office requires them to uphold the U.S. Constitution.  Here are article highlights:

Senate Republicans announced today that they would refuse to consider any candidate nominated by President Obama for the Supreme Court. The Constitution gives the Senate the right to offer advice and consent on Court nominees. The two bodies have frequently quarreled over just how much power each is entitled over a nomination. Sometimes, senators have granted presidents wide latitude. At other times, they have insisted on forcing the president to nominate a jurist with mainstream views. But never before in American history has the Senate simply refused to let the president nominate anybody at all simply because it was an election year.

One can defend the moral or procedural legitimacy of the Republican escalation. But few Republicans or conservative intellectuals have done so. Instead they have asserted that they are merely following historical precedent. This is demonstrably false.

The first defense, offered up on the fly by Ted Cruz and Marco Rubio at the Republican presidential debate that happened to take place that night, relied on “80 years of precedent” of presidents abstaining from nominating anybody to the Court in an election year. This precedent has turned out to be a complete fiction. Presidents have nominated, and Senates have confirmed, numerous justices to the Court, as law professorAmy Howe pointed out. The Senate did reject Abe Fortas’s elevation to chief justice in 1968, but it did so out of opposition to Fortas’s allegedly improper ties to the administration, not out of a principled rejection of President Johnson’s right to alter the Court in an election year.

The initial insistence that the Senate traditionally blocks any election-year appointments has fallen by the wayside for lack of any supporting evidence.  Instead Republicans have fallen back to insisting that Democrats have advocated blocking Court nominees in an election year.
The first alleged example of a Democrat advocating a full election-year blockade is a widely disseminated partial quote by Senator Charles Schumer from 2007 . . . . Schumer’s proposed solution was not to stop any Bush nominee, but to require evidence of their moderation in their judicial record, not merely in promises they would make. One could believe Schumer was demanding too much deference for the Senate. But he was not arguing that the Senate should refuse to consider any nomination at all. . . . .  But the circumstances did not arise because there was no Supreme Court vacancy at all. Schumer’s remarks, which did not say what Krauthammer claims they said, were completely hypothetical.

A second example of Democrats allegedly advocating the current Republican position comes from recently unearthed 1992 remarks by Joe Biden, then a senator. But Biden was not advocating a blockade of any nomination by then-president George Bush. He was insisting that Bush compromise ideologically.

Both these remarks are within the historic tradition of senators tussling over how much say their chamber should have in the ideology of a new justice. But neither of them advocated flat-out blocking the president from any nomination, however moderate or well-qualified.
And maybe the old system, in which social norms dictate that the Senate allow the president to put his ideological imprint on the Court, is simply untenable in a polarized age. Maybe that system was bound to perish. . . . But the clear fact is that they [Democrats] didn’t kill that system and they didn’t create the new one that is taking its place. The current Senate Republicans did.

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