For Senate Republicans, holding hearings on President Obama’s qualified and moderate nomination for the Supreme Court is both the ethical course and the politically smart course. It is also in the best interests of the nation.
In fact, the Byzantine political maneuverings by the President and the Republican leadership, by turns petty and ingenious, have handed Republicans a political chess victory, if only they are smart enough, responsible enough, and patriotic enough to grab it. Naturally, they aren’t.
It is infuriating, and all citizens should be infuriated.
A brief review of how we got to this point of looming GOP disgrace is in order:
- Justice Scalia died, removing a towering conservative force from the Court. This meant that almost any replacement, and definitely one named by Obama, would make the Supreme Court more liberal than it has been in many years.
- Seizing on the opportunity to make the election a referendum on the composition of the Court (which is was going to be anyway), Mich McConnell announced that no nominee named by Obama, an outgoing POTUS less than a year from leaving office, would be considered by the Senate.
- Democrats and their allies in the punditry predictably pronounced this to be a breach of Senate duty. Embarrassingly, records surfaced of Joe Biden asserting the same basic principle that McConnell was arguing for, when Bush was the President. Biden, I must duly note, is an idiot, but he’s still the current Vice President. Then again, all Biden has to do is say now, “I was wrong.” As he frequently is.
- Though many predicted that Obama would name a transsexual, disabled black Jewish Latino judge with Socialist leanings to maximize the opportunity to politicize the process, he did the opposite. He named a qualified jurist.
- The judge he named, Merrick Garland, is a white, veteran 63-year-old judge with a distinguished record, nothing flamboyant or controversial, who is as close to a non-ideological, non-partisan moderate as any Democratic President is likely to appoint from now until the stars turn cold.
Now, if Senate Republicans were interested in doing what is in the best interests of the nation—that is, filling the Supreme Court vacancy as soon as possible, giving proper deference to a responsible and reasonable nomination by the President, avoiding a nasty and divisive partisan fight, and ensuring that the next Supreme Court Justice won’t be an intractable leftist firebrand determined to gut the Constitution or another “wise Latina” mediocrity who will pollute the record with touchy-feely ramblings—they would leap on this opportunity and unanimously confirm Garland, saying publicly that they reconsidered McConnell’s declaration in the interest of restoring the integrity of the nomination process and returning to the time before Democrats politicized the process beyond reason in the Bork hearings, giving the President his choice, regardless of philosophical bent, when the nominee is qualified, dignified, experienced and trustworthy. like Judge Garland Privately, of course, they would think, “Hot DAMN! This worked out great! We maneuvered Obama into a moderate nomination who is already in his sixties! This is better than we could have hoped for, and certainly better than anyone we’re likely to get from President Hillary or President Trump, who might nominate Ann Coulter or Putin!”
Unfortunately, they are not interested in doing what is best for the country, best for the Court, or what will begin to heal the partisan divide and model responsible bi-partisan governance. Why? We are told that they won’t do this because their hard right base—you know, morons—will be angry at them for not holding out for confirming another Scalia, the chances of which are somewhere between the odds of Scalia returning from the dead and the odds of Sea Biscuit winning the Kentucky Derby in 2016.
You know, there’s a few words that come to mind when a political party refuses to do what it knows is responsible, smart, and right because angry, irrational, none-too-swift party members want them to be stubborn, viciously partisan and self-destructive instead, but I can’t write them here because I’d have to ban myself.
Now, do Democrats have standing to accuse Republicans of being unethical by refusing to vote on Obama’s gift nominee? No! Volokh Consipiracy contributor and law professor David Bernstein knocked that contention out of the park thusly…
[T]he Obama administration, with its aggressive assertions of executive power (some of which, I should note, I would support on policy grounds), is in a poor position to appeal to constitutional norms. The administration showed a severe lack of respect for constitutional norms when, for example, contrary to decades of precedent that the Justice Department will defend any federal law with a plausible defense, it refused to defend the Defense of Marriage Act before the Supreme Court (after defending it a year earlier in the court of appeals!); when the administration forced Common Core standards on local education without anything resembling explicit congressional approval or even debate, based on an aggressive reading of vague existing law; when the administration unilaterally changed immigration policy via executive order, after Congress failed to pass legislation that would have accomplished similar ends; when the president has simply refused to enforce provisions of Obamacare that proved politically problematic; and, for that matter, when the president advocated for and signed perhaps the only major piece of American social legislation (Obamacare) that not only failed to win widespread bipartisan support, but also attracted not a single vote in either house of Congress from the other party. More generally, President Obama has repeatedly promised to try to circumvent Congress using any arguably legal means available, on the rather extra-constitutional grounds, contrary to the norms attendant to the separation of powers, that “we can’t wait” for Congress to pass legislation that the president favors.
No one forced the president to ignore preexisting constitutional norms to advance his political agenda. And it’s just a little too cute for his administration, heedless of constitutional norms in a variety of contexts, to appeal to them with regard to the Garland nomination.
This analysis is fair and correct as far as it goes. In Ethics Alarms terms, Democrats are ethically estopped from complaining about the Republicans being just as high-handed and contemptuous of tradition and process as Obama has been from the start. It all breaks down, however, when one considers that confirming Garland advances the GOP political agenda as far as it is likely to be advanced under these circumstances. Nobody gains by following through on McConnell’s pledge, not Obama, not Garland, not the Court; not Republicans, not Democrats, not the public, not the law and not the political process.
It will make the worst of Republican members happy, though, so that’s what the GOP Senators will do. Unethical, unpatriotic and stupid.
If it continues on this path, the GOP will have proven itself too unethical and irresponsible to be trusted.