The short review would be “Yecchh.”

The reason that the earlier Ethics Alarms post about the death of Justice Scalia expressed the wish that President Obama on his own declare that he would defer the almost certainly futile appointment of a successor to the tender care of the next President was precisely because it was obvious that any other course was just going to create more ugly partisan name-calling and hypocrisy, accomplishing nothing positive and wasting a lot of energy and time. I also knew that this most divisive of POTUS’s would no more do that than he would deliver his next speech in a duck voice. Thus we have the theater, with people who should know better acting like the Republican Senate’s announcement that it would not be voting on President Obama’s nominee, should he make one, is some  kind of gross breach of duty and ethics, and people who don’t know better acting as if being one Justice short is some kind of Armageddon. Neither is true.

Nor is there any reasonably similar set of circumstances and conditions that makes the GOP’s entirely political decision, and Obama’s entirely political decision to test it, some kind of breach of precedent. There is no precedent—not with these factors in play:

A Democratic President with both Houses controlled by the Republicans

An ideologically and evenly divided Court, with the new Justice potentially having a momentous and nation-changing effect on the determination of many looming cases

An unusually partisan and ideological President who has proven unwilling and unable to seek legitimate input from the opposing party, and who, in fact, has been personally and bitterly insulting toward it

A rebellion against the “establishment” in both parties, from the extreme reaches of both parties, on the grounds that neither is extreme or combative enough

A lame duck, not especially popular President and an approaching national election that is currently being molded by unpredictable personalities and events, and is likely to be hotly contested..

The Supreme Court unusually central to the government of the country.

The vacancy on the Court being created by the death of one of the Court’s most influential, ideological and powerful members.

A degree of political division in the public not experienced since the Civil War.

These are all material factors, made more material in some cases because of the other factors. Thus accusations that the Republican have engaged in some kind of grand, historical crime against democracy is, to the extent the accusers believe it, crap, and to the extent that they don’t, ignorant. Continue reading →