In a fiercely divisive, anger-filled age when Democrats and Republicans regularly engage in constitutional revisionism whenever it’s politically convenient, it’s useful to go back to the Founding Fathers when it comes to the controversy of “lame-duck presidents” exercising their constitutional duties and picking U.S. Supreme Court nominees. After all, wouldn’t you expect the Framers to set a proper example?
After President John Adams was vanquished in the pivotal (and ugly) election of 1800, he tapped his secretary of state to fill the chief justice vacancy on the high court, even though Thomas Jefferson was to replace Adams in less than two months. The nomination of John Marshall — arguably the greatest chief justice of all — was speedily confirmed. Yes, Jefferson and Marshall got along like oil and water, despite their being kin. But a constitutional precedent was etched in American stone. Or so one might have thought.
So are there lessons for Americans quick to ignore the Constitution in the wake of conservative Justice Antonin Scalia’s death in West Texas? Sure. First, let’s look at Republicans who believe they’re justified blocking any court nominee put forward by lame-duck President Obama because some Democrats previously invoked the same nonsense on how presidents shouldn’t pick such nominees in their last year in office.
By reviving the Democrats’ idiotic rationale from the past, Republicans even more shamelessly forsake the Constitution they supposedly cherish. They prove they’re no better than the Democrats they detest, citing the same flawed principles they themselves correctly condemned in prouder, saner times. Does this now mean Democrats were right all along — and that Republicans back then were wrong? Or are Republicans just willing to throw the Constitution under the bus as well because it’s convenient?
And if Republicans today believe the opposite of what they believed back then, why don’t they put it in the form of a constitutional amendment and send it along to the states, sealing this as constitutional policy for all time? U.S. Sen. John Cornyn, a Texas Republican on the Senate Judiciary Committee, a former district and state supreme court judge and long the voice of reason in the Senate, now suggests tradition has long precluded appointment of Supreme Court justices during a president’s final year in office. Besides, Democrats said as much in earlier times, he stresses.
“Here in the Senate, tradition and precedent are not quite as good but almost as good as a constitutional amendment,” he said when I asked about codifying all this if he and other Republicans truly believe in this policy. “And I think we’d have to acknowledge that, if this is something that would apply during the last year of President Obama’s term, it would likely have to apply to the last year of a Republican president’s term of office.”
Maybe. But U.S. Sen. Lindsey Graham — one of the smartest members of that once-august body — has signaled that fellow Republicans, by pressing this fight to the point of obstruction, risk setting a terrible precedent that, beforehand, was the stuff of mere words, not actual practice: “We are setting a precedent here today, Republicans are, that in the last year at least of a lame-duck eight-year term — I would say it’s going to be a four-year term — that you’re not going to fill a vacancy of the Supreme Court based on what we’re doing here today.”
His immediate concern: By refusing to even conduct hearings on Obama’s nominee, Senate Republicans risk a liberal nominee if and when Democratic candidate Hillary Clinton wins the general election come November.
More? Legal scholars dismiss the idea of Supreme Court nominees ever being deemed invalid in the final year of a president’s term. One has even examined the matter statistically.
“Over the entire course of American history, 24 times presidents nominated individuals during an election year — sometimes when presidents were seeking re-election, sometimes not,” University of California-Irvine Law School dean Erwin Chemerinsky said in a spirited phone press conference on the issue. “And in 21 of 24 instances, the nominee was confirmed by the Senate. That’s 87.5 percent of the time.”
And “if you look at the appointment of all justices, 86.9 percent have been confirmed,” Chemerinsky added, “so there’s no statistical difference between nominations in the last year of a presidency and nominations that come in any other time.”
He also said the Supreme Court is not going to be able to do its constitutional duty if it goes for very long with just eight justices. And Obama has 10 months left in office.
Baylor University President Ken Starr, a former U.S. Circuit judge for the District of Columbia who argued before the Supreme Court as solicitor general from 1989-93, might be expected to know a little something about all this. Within hours of his nomination by President Obama on Wednesday, federal appeals court Judge Merrick Garland — a favorite of President Bill Clinton — had won unstinting praise from Starr, who presumably is not in the Clinton circle given his leading the Whitewater investigations. Starr pronounced Garland “a brilliant jurist who believes in and upholds the rule of law undergirding our constitutional republic.”
Anyone who knows Starr also knows this: his almost sacred regard for judicial integrity and the U.S. Constitution. (Incidentally, Baylor Law School teaches students to embrace Justice Scalia’s style of legal writing for its “clarity, brevity and invention.”)
And in describing the Republican stance as “partisan reflex in search of a justifying principle,” longtime commentator George Will — the very intellectual muscle of the conservative movement — noted that, with his remarkable record of judicial restraint, Judge Garland “resembles two justices nominated by Presidents George W. Bush and Ronald Reagan, respectively — Chief Justice John Roberts and, even more, Scalia, who seems to be more revered than read by many conservatives.”
Will’s condemnation of Republicans in this instance is blistering — all the more so given Will’s disdain for Obama.
All this leaves Senate Republicans and others who place their political party above country in an awkward place. By blocking Obama on clearly unconstitutional grounds, they unwittingly confirm the legitimacy of a real-estate magnate and reality TV star who threatens to tear apart the Republican Party by vowing to overcome such congressional gridlock, making government work again and cutting deals. If that’s not damning enough for Republican leadership, they must accept the fact they have fallen into the obstructionist mode they once condemned in Senate colleague Ted Cruz, who employed government shutdowns and filibusters to inconsequential if not destructive ends.
In remarks about the Senate blockade last week, Cornyn indicated he was dutifully working with the White House to confirm other federal judges but that the U.S. Supreme Court was simply too “politicized” to allow Obama his pick in the final year of his tenure, especially when a confirmed Obama nominee might serve on the court for a generation. Unfortunately, Senate Republicans have only increased the political stakes by risking a Supreme Court nomination by President Donald Trump or President Hillary Clinton — a crazy prospect when an utterly acceptable choice for conservative Republicans now stares them in the face.