(02-16-2016, 09:48 AM)oldalum link Wrote:am I the only one who finds it hypocritical for politicians and pundits to praise Scalia to high heaven for his fanatical adherence to textual interpretation of the Constitution, and then call for Obama to defer any S.C. nomination to the next president so that the "people" can choose? The goal of Scalia's analysis is to discern from the text what was the intent of the framers. The text of the constitution says nothing about lame duck year appointments. If the framers thought it would be advisable to defer lame duck year appointments to the next president, they knew how to write in that language, but they didn't. The constitution clearly intends lame duck appointments to be made. I see no text-based argument to the contrary. So the argument for deferring to the next president is simply, I think it would be a good idea even though there is nothing in the constitution to support it; to which Obama should (and will reply), thank you for your expressing your opinion, here is my decision.
Well, yeah. There's no Constitutional basis for it, but I don't think the Republicans are making such an argument. They realize there's no such reason, but for political reasons, they have to come up with
something. Hence the specious appeal to direct democracy--
i.e., this is so important, we need the people to weigh in this fall. But I think anyone who's paying attention, including my Republican friends, realize that's pure sophistry. This is to drive up GOP turnout in the hope that a Republican can win the White House and nominate Scalia's successor. It's certainly understandable, since a liberal replacement for Scalia could undo many of the recent 5-4 decisions that went the conservatives' way. It's just not a practice rooted in history or the Constitution.Â
In sum, of course it's hypocritical. The question is whether they'll be punished for that hypocrisy at the ballot box in November. I tend to think they will, but a Republican colleague of mine is fairly convinced this is a winning political issue for them because of the effect it will have on GOP turnout. (I tend to think turnout would have already been pretty sky-high for them, and anger over a stalled nomination would actually be a net boost to
Democratic turnout, but I suppose we'll see.) Or perhaps the Senate GOP already sees its chances of retaining the Senate as low (given the number of blue- and purple-state GOP Senators up this cycle), so figures it needs to shake up the dynamic? In any event, it's obviously a purely political decision rather than one rooted in any sense of Constitutional or democratic tradition. I don't think that's really in dispute.Â
Reminds me of 2008, when in the summer before the election, Sen. McConnell (as Minority Leader) took to the Senate floor to decry the use of the so-called "Thurmond Rule"--which he claimed didn't exist and never had--to hold up President George W. Bush's last batch of judicial nominees, and instead arguing that the Senate should hold hearings and vote on nominees through the end of the summer, at least. This, combined with the Kennedy confirmation vote and the lack of other election-year SCOTUS nominees being rejected, tells us there's no precedent for what's being proposed. So, it's without support in the Constitution or Senate history. As I said previously, the Senate has the Constitutional power to withhold consent, and presumably by any means it so chooses, but that consent power has always been exercised in the past to
examine a particular nominee and decide whether
that nominee should be confirmed.Â
This is the kind of stuff that leads to Constitutional crises in presidential systems with a shorter history than ours (and which, has been pointed out elsewhere in this thread, have an unfortunate history of failing). If an Obama nominee is denied hearings and a vote for nearly a year, what's to stop a Majority Leader Schumer from denying a vote to a Cruz or Trump nominee for four? The stakes will only rise with the possible deaths or retirements of the other older Justices like Ginsburg (age 82), Kennedy (79), and Breyer (77). We saw that breakdown on the refusal by Republicans to confirm any nominees to the National Labor Relations Board, leading that body to become incapable of acting due to a lack of quorum. I would hope that the importance of the Supreme Court would mean that the American people would eventually make a change at President or in the Senate to allow nominees to be confirmed.Â
And because this prospect is so terrifying, I'm optimistic that the Senate will reverse course after the election and confirm Obama's nominee in the lame duck session (unless a Republican is elected President, of course). At that point, if Hillary is elected and Democrats win back a Senate majority, the choice will presumably be between a known (a relative moderate, we assume) and an unknown (potentially an outspoken liberal as a Clinton nominee). With the election past and base motivations mooted, I should think enough Republicans would coalesce around a moderate nominee to get confirmation done by the end of December. (In order for that timeframe to work, though, a lot of the background work on the nominee will probably be done during the campaign, so that hearings could be scheduled in mid-November for a December confirmation.) That assumes, of course, that President Obama doesn't choose to withdraw his nominee once he realizes Hillary is in position to make a more consequential (in terms of youth and ideology) appointment to the Supreme Court. But it would be tough to walk away from a qualified nominee that just weathered an electoral hurricane and that the Senate now says it would confirm.Â
