Beyond Naked Partisanship
The Zero Option Nominee for the Supreme Court
After Justice Scalia’s death, a reasonably sane political party would have followed the standard route to ensuring that the president didn’t appoint anyone too far from its agenda: Hold a hearing, and reject any nominee who it found to be unsuitable. The usual hilarity would follow: The outraged party would be outraged; the opposing party would shrug and rightly say that it hadn’t done anything unprecedented.
But “reasonably sane” doesn’t even come close to describing the present crop of Republicans. They immediately panicked at the thought that Obama, of all people — a man who, in the eyes of many among them, might be a Muslim, might not even be a U.S. citizen, and had spent the last seven years deliberately working against U.S. interests in every possible way — might get to shift the Supreme Court away from its previous conservative majority. Instead of just letting him nominate someone and then rejecting the nominee, they reacted like petulant children and declared that they wouldn’t even listen to anyone he might put forward.
In the past, Democrats have filibustered against or voted down nominees of a Republican president, and they’ve also called on a president not to make interim appointments or choose nominees they might consider ideologically out of bounds, but this Senate made a quantum leap into a new reality by telling this president not to send them any nominee at all and that they would refuse even to listen to a nominee or consider the case for or against the appointment.
Having overreacted to the terrifying thought that Obama might move the court away from their ideological control, Republicans realized that they needed to come up with some kind of rationale beyond naked partisanship — they needed a talking point they could rally around. They hit on the notion that a president in the final year of his term should surrender his constitutional duty to put forward a Supreme Court nominee and instead allow the American people to weigh in by electing someone else to do this. Of course, the American people did elect and reelect a president whose tasks include proposing appointments to the Supreme Court, but the Republicans clearly believe that elections they lose don’t really count and so they’re entitled to try again with new candidates in the hope of getting someone they prefer.
Then again, they might get someone they don’t prefer. It occurred to some Republicans that the new president might give them a nominee they like less than the nominee they have before them now, and so Senator Orrin Hatch, among others, floated the possibility that if Hillary Clinton wins the election, it might be better to confirm Obama’s choice rather than let her choose someone who might be even further to the left, as well as younger and thus likely to be on the court longer. In other words, let’s leave the choice to the president who the American people choose next, unless we like the president they choose next even less than the one they chose before, in which case that thing about giving them a voice in deciding which way the court should move no longer applies, so let’s confirm Obama’s pick before the American people’s choice of Clinton comes into effect.
Oh wait, in the latest twisting in the wind, Hatch has changed his mind and now thinks that rather than continue to be exposed as a fool and a hypocrite for saying it would be okay if Obama rather than Hillary made the choice, now he’d be okay waiting for Hillary.
Yes, the Democrats are playing this as theater, but at least their script has tradition and principle behind it: The people elected a president, the president makes a nomination to the court, the Senate holds a hearing and affirms or rejects the nominee. The Republicans lack any guiding principle beyond a willingness to toss all of this aside in its quest for political advantage.
As to Obama supposedly being a lame duck, Republicans haven’t yet pointed out what other constitutional duties they expect him to surrender — for example, signing or vetoing legislation that might have significant long-term effects, negotiating or signing treaties, engaging in activities involving his status as commander-in-chief — or whether Republican senators or members of Congress now in the last year of their term intend to set an example for the president by surrendering any legislative duties that might have consequences beyond the end of their terms. It doesn’t seem likely that they will.
It’s no surprise that Republicans would try to keep an additional liberal from the court, but the fact that they reached for a sledgehammer when all they needed was the casual flick of a finger shows how hysterically and reflexively obstructionist they are.
