By Dick Polman
Help me out here. I’m searching the U.S. Constitution for the passage which says that a president shall nominate Supreme Court justices with the Senate’s advice and consent unless that president is a
lame-duck* second-term Democrat.
Surely that passage must be somewhere in Article II, but alas I can’t seem to spot it. I have to assume it’s there because the Republicans seem to believe it’s there, and we all know that the Republicans — in the spirit of the late Antonin Scalia — revere the literal language as crafted by the Founders.
Unless, of course, they’re hypocrites who dishonor Scalia by making up stuff that’s not in the document.
Obama Hatred Syndrome We’ve known for nearly eight years that hatred of Barack Obama twists the mind — and the latest symptom of this disease, which speedily metastasized this weekend, is the willful delusion that a Democrat in his final year in office has no right to name a Supreme Court justice; and that any such nominee, regardless of merit, shall be automatically stiffed by Senate Republicans, the alleged guardians of our Constitution.
As renowned constitutional scholar Donald Trump declared in Saturday night’s GOP debate, “It’s up to Mitch McConnell and everybody else to stop it. It’s called delay, delay, delay.” Marco Rubio echoed, “I do not believe the president should appoint someone.” John Kasich echoed, “We ought to let the next president of the United States decide.”
Oddly enough, this Republican ‘tude doesn’t square with the literal strict-constructionist language of the document — which plainly states, without caveats or escape clauses or equivocation, that a president’s term is “four years” (not three), and that during those four years, “he shall nominate, and by and with the advice and consent of the Senate…judges of the Supreme Court.” That’s it.
But the trauma of losing their 5-4 conservative majority has newly unhinged the Republicans’ minds. Their most egregious spin (so far) was on full display in Saturday night’s debate. Rubio insisted that Obama should shirk his constitutional duty because “it has been over 80 years since a lame duck president has appointed a Supreme Court justice.” Another purported historian, Ted Cruz, echoed: “We have 80 years of precedent of not confirming Supreme Court justices in an election year.”
This suggestion is long overdue: When Republican candidates debate, they should be hooked up to lie detectors.
Lies, Damn Lies and Republicans The “80 years” line is a con. It takes roughly 10 seconds of Googling to unearth factual truth. Ronald Reagan was a
lame-duck* second-term president in February 1988, serving out his final year, when his final nominee — Anthony Kennedy — was confirmed by the Senate. Reagan had urged the Senate to “join together in a bipartisan effort to fulfill our constitutional obligation of restoring the United States Supreme Court to full strength.” And the Senate duly fulfilled its obligation.
GOP leader Mitch McConnell, who said this weekend that “lame-duck”* Obama shouldn’t bother to name a nominee, voted to confirm Kennedy. Charles Grassley, the Republican chairman of the Judiciary Committee, who now says it’s “standard practice” not to confirm a new justice “during a presidential election year,” voted to confirm Kennedy — in a presidential election year. He lauded his colleagues for “expediting” confirmation.
And no wonder: Not a single Democrat voted No.
Not a single Democrat in ’88 tried to diss the Constitution the way Republicans are trying now. Here’s what McConnell said this weekend: “The American people should have a voice in the selection of their next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president.” Funny, he didn’t say that in ’88.
Wasn’t Obama Elected? The rejoinder to that laugh line is simple: “The American people” have already exercised their voice. The current president, who’s constitutionally empowered to do his duty, was decisively elected by clear majorities — twice. (A truth that Republicans still can’t accept.) And unlike his predecessor, Obama didn’t need Antonin Scalia to drag him across the finish line.
Republican obstructionism has been a tumor on the body politic since Day One of the Obama era. If they double down by holding the high court hostage for a solid year — by stiffing a well-qualified nominee; or, worse yet politically, a well-qualified nominee of color — they will demonstrate anew, for swing voters, their abiding contempt for governance.
And they’ll risk losing not only the presidency, but their Senate majority — because seven of their incumbents, including Pennsylvania’s Pat Toomey, are running this year in states that Obama won in 2012.
* Editor’s Note: Obama won’t be a “lame duck” until after the November election and before a new president is inaugurated.
Dick Polman, former political writer for the Philadelphia Inquirer, blogs at www.newsworks.org, where this column originally appeared.