Article 2, Section 2, of the Federal Constitution of 1787 is fairly clear on the responsibility of the President of the United States when confronted by a vacancy on the Supreme Court. The relevant clause of that Section reads, “he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for.”
Note, my Constitutional originalists, the use of the imperative verb “shall.”
The President has a mandate from the Constitution to nominate judges. It is not optional. It is not something that can be set aside by the petty whims of partisan politics. It is not something an ideologically rigid and slobberingly fanatical opposition can demand be postponed until some future election can be rigged to return power into their grasping claws. It is a duty, one imposed by the Founding Fathers.
People who think the Constitution is the greatest invention of humankind and something whose Original Intent should be preserved against all forces of historical change would do well to follow their own advice here.
Not that the modern GOP gives a rat’s ass about the Constitution. Not really.
Oh, they like to claim that they do. They talk about it in the hushed and reverent tones that robber barons normally reserve for their bank accounts or televangelists use when describing their Rolex watches or their mistresses. They want you to think that they can’t even start their day without a tall glass of freshly-squeezed orange juice and a big old helpin’ o’ Constitution with their morning paper. And there are many sadly uninformed people who fall for it. But one should always watch what politicians do more than listen to what they say, if one wants to know what those politicians are really like.
There is no evidence whatsoever that the modern GOP leadership has ever actually read, let alone understood, the Constitution of the United States. There is no evidence that they would value the document if they had. For them, the document is a big shiny club with which to beat their enemies into submission, and therefore they act as though it says whatever they want it to say. When you truly believe that truth is measured by strength of belief, reality is expendable.
This, for example, is the same group that brought you the abhorrent and entirely fabricated Unitary Executive Theory, back when they held the executive branch – the one that said any opposition to any whim of the President was treasonous. Granted, they soft-pedaled that fairly quickly once their white Republican handed over power to a black Democrat, but they’ve never repudiated it and there is no doubt whatsoever that they will rush to enforce it again the next time a white Republican gets appointed to the presidency by the Supreme Court.
Which, of course, brings us back to the matter at hand.
You knew the death of Antonin Scalia would bring out the crazy in American politics. It’s an election year, Scalia was a polarizing and viciously partisan politician who had given up all pretense of professional jurisprudence more than a decade ago, and in a year where the top three Republican presidential candidates are a bloviating bullshit salesman who can only be acquitted of being a Fascist because he hasn’t got the intellectual consistency or heft to be one, a Canadian grifter whom nobody even in his own party can stand and whose air-tight ideological bubble has more than once led him to do things that handed unnecessary victories to Barack Obama, and a windup toy Senator who makes Sarah Palin look like William Safire, the odds that anything responsible would be coming down the pike from that end of the political spectrum were essentially nil.
But the current publicly stated position of the GOP leadership takes the cut-glass fly swatter.
They have now stated for the record – signed a document and everything – that they will not consider any nominee for Supreme Court proposed by the President. They will not hold the confirmation hearings that are the Constitutionally-mandated responsibility of the Senate, regardless of who the President nominates. They will not even speak to the nominee if that person stops by their office for a social visit. They demand that the President not even send them nominees – that he abandon his Constitutionally-mandated responsibilities as eagerly as they have abandoned theirs.
So the first thing the intelligent reader gets from this is that this is not about the nominees.
Obama could nominate Ted Cruz for the position, and the Senate will not consider it. He could resurrect Ronald Reagan, or Abraham Lincoln, or John Marshall. It would not matter. This is not about the nominee, or about the judicial system in general or the Supreme Court in particular. Not really.
This is about the blind hatred the GOP has for Barack Obama – a hatred that has completely overwhelmed a once-responsible conservative party and turned it into an ideological gong, ceaselessly clanging the same one note of discord.
This is about the flat refusal of the Republican party to accept democracy, to accept that elections matter, to accept that a well-founded republic rests on laws and not the partisan interests of factions.
They say that Obama is a lame-duck president. This is interesting, considering he has nearly a year left in office, but it is completely irrelevant. He is the president. This is his responsibility. Those who seek to block him from exercising his Constitutionally-mandated responsibilities are guilty of subversion.
They say that the American people should have a say. But the American people have already had their say. Twice. Barack Obama is the only president in the last three decades who has twice won the majority of the votes cast in a presidential election. THE ONLY ONE. He has far more legitimacy than any of the legal midgets in Congress currently working to undermine the proper functioning of the federal government. The American people have already had their say, and they said that Barack Obama was their choice to nominate Supreme Court justices until January of 2017.
They say that the Democrats have done this before. This is nonsense. One Democrat – Charles Shumer – said something similar in 2007, but that was one guy, not the leadership of the party, not every single presidential candidate running for the Democratic nomination in 2008, and not something that was actually crafted as a formal statement of principles. They say that Democrats refused to confirm some nominees, which is true – but those nominees had hearings, and those nominees were not treated as illegitimate simply because a Republican president had proposed them. The Republicans in the Senate have every right to deny Obama’s nominees, after he has nominated them and after the Senate has held the appropriate hearings. To unilaterally declare before any nomination is even made that the president has no right to make such nominations and that they won’t hold those hearings if he does is, indeed, an unprecedented show of contempt for the office of the presidency and the Constitution itself.
During the fight to get marriage equality enforced in Kentucky in 2015 – yet another example of the modern GOP deciding to ignore both law and Constitution when they found both inconvenient to their absolute grip on vulgar power – Kentucky Governor Steve Beshear scolded the power-mad clerk at the center of it. “When you voluntarily decide to run for office, and you win, and you raise your hand and you take the oath to uphold the Constitution of the United States,” he pointed out, “that oath doesn’t say, ‘I will uphold the parts of the Constitution that I agree with and won’t with the parts I don’t agree with.’” The Constitution is not a buffet. You don’t get to pick and choose. You either respect it all, or you violate your oath and face the legal consequences of your criminal act.
There is a fine-grained irony in the fact that in their refusal to allow a sitting president to nominate a replacement for a Supreme Court justice known, accurately or inaccurately, for his steadfast insistence on preserving the original intent of the Founding Fathers when it came to Constitutional matters, the Republicans have invented out of whole cloth new and hallucinatory interpretations of their Constitutional duties and obligations.
The bottom line is simple. The Republican Party leadership has crossed yet another line, and it is time that they be treated as the subversive threat to the long-term survival of the American republic that they have demonstrated repeatedly they are.