The Republican Party’s intransigence in Congress is legendary. But the new refusal to consider any appointment of a new justice to the U.S. Supreme Court by President Obama is an outright abuse of power.
The body of late Justice Antonin Scalia, 79, was hardly cold Saturday morning before the calls to block an appointment until after the next presidential election were heard. Sen. Ted Cruz, the Texan running for president, was out of the blocks early with a Twitter message.
Senate Majority Leader Mitch McConnell, R-Kentucky, wasted no time following suit in insisting on a policy of obstruction that he himself deplored in past decades.
McConnell had opposed what he called “advise and obstruct,” favoring a more broad-minded policy in 2005 while fighting Democrats over confirmation of judges appointed by then-President George W. Bush:
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“Any president’s judicial nominees should receive careful consideration. But after that debate, they deserve a simple up-or-down vote. … It’s time to move away from advise and obstruct and get back to advise and consent,” McConnell had said. “The stakes are high … The Constitution of the United States is at stake. Article II, Section 2 clearly provides that the president, and the president alone, nominates judges. The Senate is empowered to give advice and consent.”
He went on to say that his “Democratic colleagues want to change the rules. They want to reinterpret the Constitution to require a supermajority for confirmation. In effect, they would take away the power to nominate from the president and grant it to a minority of 41 senators.”
He went on in a floor speech on May 19, 2005, to say “the Republican conference intends to restore the principle that, regardless of party, any president's judicial nominees, after full debate, deserve a simple up-or-down vote.”
Of course, things have changed. The shoe is on the other foot.
Some Republicans have claimed misleadingly that there is a long tradition of not confirming justices in the final full year of a president’s term. Democrats point out that Anthony Kennedy, appointed late in 1987 by Ronald Reagan, was confirmed in 1988, Reagan’s final full year in office. That move that came after the Senate rejected the first nominee, Robert Bork, in 1987.
Obviously, President Obama faces many choices here in a highly politicized environment. It is in the country’s interest to have a full court of nine justices, rather than wait a year with a vacancy.
Veteran court watchers have predicted that several lower-court rulings are likely to stand this year because the eight justices remaining on the court are likely to split 4-to-4 on the issues. These include Obama’s immigration policy orders and a challenge to union fees charges to nonmembers; left undecided by the Supreme Court, Obama would lose the immigration case and unions would win the agency fee decision.
Right now it’s hard to see how Obama could nominate and win confirmation for even a well-qualified candidate.
However, if Obama does nominate someone who recently passed a confirmation vote for a federal district court with near unanimity, the obstructionism would be painful in its ugliness and disregard for the U. S. Constitution, which many of the Republican obstructionists often claim to love.