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Monday, February 15, 2016
Current Affairs ... Politics ...

The political reaction to the recent unexpected death of Supreme Court Justice Anthony Scalia is quite depressing. Under the Constitution, President Obama should soon (i.e., within in the next few weeks) appoint a replacement, and the US Senate should review that appointment and either approve or nix it. Of course, the Senate has a Republican majority, and a number of those Republican Senators (including Senate President Mitch McConnell) say that they will vote against ANY candidate that the President may send their way. They argue that the appointment should wait given that we will have a new President in a little less than a year. There is no historical precedent for such a rule; Ronald Reagan appointed Supreme Court Justice Anthony Kennedy in his final year of office, and the Senate approved it.

Unfortunately, the level of partisan political warfare has greatly intensified since the 1980’s. There are a number of politically important Supreme Court cases to be heard and decided this year, involving hot-button issues such as abortion and labor union rights. The good Senators are afraid that a highly partisan appointment by President Obama will tip these cases in the direction that Democrats would favor. So, in assuming that the President will act in a partisan manner, they justify their own hyper-partisan tactics.

That’s where we are today in national politics; no one even waits to see what the other side will do, they take pre-emptive strike measures right up front. Here’s an example I can across today. There is an article on the Federalist web site by conservative pundit David Harsanyi entitled GOP Has A Duty to Reject Obama’s SCOTUS Pick“.

I’ve read various articles by Harsanyi; given that I have developed some conservative sympathies in my old age, I have found his ideas and arguments to generally be intelligent and worthy of consideration (even though I often disagree with his ultimate conclusions). But today, Harsanyi is just joining the partisan conga-line. The GOP has a DUTY to act in a pre-emptively partisan fashion, not even waiting to see just who President Obama would put forth? Just when did hyper-partisan politics become a DUTY? Harsanyi claims that this “duty” lies ultimately in the American Constitution; he concludes “But if conservatives truly believe their rhetoric on constitutional values . . . this might be the most worthwhile battle they’ve faced.”

Basically, Harsanyi says in his articles that Obama and the Democrats have trampled the Constitution in their quest to forward their social agenda. Therefore, the Republicans now have to take extraordinary measures so as to defend the Constitution. Those pre-emptive, extraordinary measures obviously include tacking a new procedural interpretation onto the US Constitution, i.e. that the Senate will not carry out its duties in reviewing a presidential appointment to the US Supreme Court when that President is a “lame duck”, and they (the Senate) feel that the President didn’t played fair when he wasn’t so lame. Usually, such Constitutional interpretations require a ruling by the Supreme Court itself.

Harsanyi’s article gives a laundry list of incidents when he felt that the Democrats went too far in stretching their Constitutional powers. As though Republican Presidents and legislators are so pure in that regard. Harsanyi claims that his ultimate concern is the integrity of the Constitution. But he seems to put forth another new procedural rule for the Senate in reviewing a Supreme Court appointee: “Republicans will have to make the case that a nominee should not only be qualified, but ideologically qualified . . . ” OK, so the Constitution that Harsanyi is so worried about protecting from Democratic ideological attacks now requires that the Senate majority party make sure that any nominee has the ideological preferences that it currently favors, in addition to the requisite jurisprudential experience and skills???

David Harsanyi is really talking out of both sides of his mouth here. It’s sad to see such an intelligent writer brought to this level of intellectual prostitution for the particular social ideologies that he would favor. He is basically assuming that the US Supreme Court is just as political an institution as the Executive and Legislative branches are. Somehow, I don’t believe that this was the intent of the writers of the US Constitution. Sure, the Judicial Branch is not above politics; as humorist and newspaper editor Finley Dunne said many years ago, the Supreme Court follows the election results. But this statement still implied that there was a background rule that the Courts should strive NOT to be political. Harsanyi throws this rule out the window.

Bottom line: this is another example of where we are today in terms of partisan wrestling, and how it is really threatening to bring down the whole system. I’ve singled out Harsanyi and his fellow Republican conservatives as an example; but to be honest, the Democrats have also been quite guilty. The incidents of hyper-partisan Democratic maneuvering that Harsanyi cites in his article are a good example of this (including Obama’s own statements and actions while a Senator reviewing the nomination by President Bush of Supreme Court Justice Samuel Alito in 2005). But, instead of calling for both sides to allow a truce in the rapidly escalating political civil war, Harsanyi just proposes further escalation. This is NOT a good sign on where our nation is headed.

◊   posted by Jim G @ 9:39 pm      

  1. Jim, At this point, the GOP seems absolutely determined not to even have hearings on the nomination. The GOP only needs 40 Senators to block a vote and recall how effectively 40 Senators blocked legislation during Obama’s first term. I believe the Dems will successfully make this a political issue, and that means that increases the odds that GOP senators in blue states (such as Ayotte) will go down to defeat. But even if the Dems win the Presidency, it is possible that it won’t be enough to retake the Senate. And here comes my prediction: If the Democrats do not retake the Senate but take the Presidency, I expect that the GOP will block any nominee to the Supreme Court. You might even hear cries that the Supreme Court doesn’t need 9 members – similar to the arguments that the GOP made to not filling vacancies on the DC Appeals Court two years ago. And ironically, this will all be done in the name of protecting the Constitution.

    Comment by Zreebs — February 28, 2016 @ 8:46 am

  2. Hi Steve,

    Good point, as always. Looks like that’s how it’s gonna play out. But let’s see who Obama nominates and how the GOP responds (irrationally, most likely).

    Comment by Jim G — March 8, 2016 @ 8:57 pm

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