Okay, please bear with me here, as this one will probably sound pretty angry. And forgive the title, as I’m aware that what I’m going to say is likely not sufficient to actually call for impeachment. But this is an important discussion, and one that means a lot to me. So here we go…
Yesterday, President Obama officially nominated a replacement for Antonin Scalia on the Supreme Court. Merrick Garland, chief judge for the U.S. Court of Appeals for the District of Columbia Circuit, and former clerk for Supreme Court Justice William Brennan, was not one of the higher profile choices being considered by pundits in the media. Garland, 63, has had a long and distinguished career, working as an assistant US attorney, having overseen the prosecution of the Oklahoma City bombing, as well as other prominent cases. Garland is older than many would have preferred, and is considered fairly moderate as “liberal” judges go. He has enjoyed broad bipartisan support throughout his career, and just this week, conservative Republican Senator Orrin Hatch spoke out in support of him.
His selection is a sign of a very conciliatory and “bipartisan” effort by President Obama to offer as palatable a suggestion as possible to Senate Republicans, while still maintaining the basic principles of a Democratic administration. There should be no reason why his nomination would be considered controversial to Republicans.
Here’s the thing, though…
Within hours of Justice Scalia’s death, almost every Republican with national name recognition immediately made public statements arguing that any replacement should wait then-11 months until a new President is sworn in January 2017. The official justification was that “the American people should have a say in the process,” and “this is a highly polarizing political time.” A few people also made the strange assertion that it’s “traditional” to not make appointments in the final year of a presidential term.
Senate Majority Leader Mitch McConnell stated, “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.”
Yeah. Hoo boy, where do I begin?
Well, let’s start with the arguments themselves.
The Republicans, lead by McConnell, claim that the American people deserve a say in the process. We should wait for a new President to be elected, so that whoever is elected would have a popular mandate for whatever nominee they choose.
Guess what, Mitch? Americans do have a say. They happened to vote President Obama in for a second consecutive four year term in November 2012, to serve from January 2013 to January 2017. Scalia died in February. That gives the president 11 months – almost a full year – to nominate a candidate for Justice of the Supreme Court. Americans didn’t vote President Obama in to serve for 3 years and a month, then take the rest of the term off. By that logic, McConnell and company should also take the rest of the year off. Then again, judging by their performance for the past seven years, who would notice if they did stop working?
Attempting to justify the first point further, several prominent Republicans have claimed that the rather unorthodox presidential primary season this year has created a “highly polarized climate,” which is reason enough to wait.
This is just grasping at straws. The intensity of presidential elections varies, and this has indeed been a strange one so far, but that has nothing to do with actual governance. Again, the President is still the President for the rest of the year. The country still needs to function. The Supreme Court now has 8 members, making a tie decision not only possible, but likely, given the 50-50 conservative versus liberal makeup of the remaining Court. This would create some issues, possibly forcing a decision back to a lower court. That’s no way to run the Judicial branch. Vacancies longer than a couple months have been rare, and are generally problematic. Of course, the Republicans, especially in the last couple decades, have had no problem avoiding their jobs of governing. Indeed, the modern Republican philosophy has been that government is always flawed, corrupt, and inefficent. Then they intentionally govern as poorly as possible in attempt to force their theory into fact.
Finally, McConnell and his cronies have made it abundantly clear that the so called “Thurmond Rule” dictates they avoid nominations and appointments in the final year of a presidential administration.
What is the Thurmond Rule? In 1968, President Lyndon Johnson nominated Abe Fortas to fill the vacant Chief Justice position on the Supreme Court. Fortas was already a Justice on the Court, a committed liberal, a friend of LBJ, and Jewish. The acknowledged racist and obstructionist Senator Strom Thurmond led the charge to vigorously oppose this appointment, citing an alleged (and overblown) scandal over speaking fees to prevent Fortas from becoming Chief Justice during that contentious election year. The tactic worked, and Fortas was not named Chief. Thurmond also claimed the election year precedent, ignoring the election year SCOTUS confirmations from 1912, 1916, 1932, and 1940.
Meanwhile, in 2016, Senate Republicans have invoked the efforts of a well-known bigot and national embarrassment to keep the President from fullfilling his Constitutional duty.
Now let’s get to the real reason for this obstruction.
It’s fear. Fear that a new Supreme Court judge will tip the balance of the Supreme Court – long run by a Republican majority – to the Democratic side. An Obama appointee will push the court over to a 5-4 liberal vs conservative edge. Considering these are lifetime appointments, the right nominee could allow a liberal SCOTUS for decades. Roe v Wade would be safe. Citizens United and Heller could both be overturned, correcting some of the worst mistakes made by the Court in years. The Republicans are scared out of their limited wits by this thought. Better to hope that the next President is a Republican than to let a Democratic President make the call. This obstruction is political cowardice and corruption at its most blatant. The Republicans have lost two Presidential elections in a row, and President Obama has already made two Supreme Court appointments. So far, the two (Sonia Sotomayor and Elena Kagan) have replaced other more liberal justices, maintaining the longstanding 5-4 conservative lean. This now stands to change, and the GOP will do anything they can to prevent this.
President Obama understands these tactics. He intentionally selected a moderate in Merrick Garland, to appease the Republican naysayers. Mr. Garland is well-respected, highly qualified, and known for collegiality and thoughtfulness. Denying a hearing only makes the GOP appear unreasonable.
For the moment, the Republican members of the Sente Judiciary Committee have held firm, with one notable exception. Jeff Flake of Arizona has indicated a willingness to at least meet with Garland.
The remaining Republican members of the committee have steadfastly refused to even consider holding the Constitutionally-mandated hearing over Mr. Garland’s qualifications. This is a list to remember. These Senators are shirking their duties and refusing to follow Constitutional processes in order to prevent future political losses. They are:
Chuck Grassley, Iowa
Orrin Hatch, Utah
Jeff Sessions, Alabama
Lindsey Graham, South Carolina
John Cornyn, Texas
Mike Lee, Utah
Ted Cruz, Texas
David Perdue, Georgia
Thom Tillis, North Carolina
David Vitter, Louisiana
These 10 men have openly and proudly proclaimed their refusal to do their jobs, and hold a hearing to consider an immensely qualified and respected nominee for the Supreme Court of the United States. They are not obligated to vote for him, merely to ensure that he is properly vetted and that a vote is held. Nothing controversial can be found in Mr. Garland’s record. In fact, several Senators have admitted that his qualifications are not in question. They simply provide the same ridiculous excuses.
Political fear. Cowardice. Obstruction. Dereliction of duty.
This likely does not fit the official definition of “high crimes and misdemeanors” required to result in impeachment. But perhaps it should. Refusal to perform one’s job without sufficient reason will result in termination in almost every other position in both the private and public sectors. Just not for wealthy and powerful elected officials. An elected official still can be expelled by their peers in certain circumstances, even without impeachment, though this is unlikely, considering Republicans currently control both houses of Congress.
Nonetheless, justice has not been served for our Justices. The very top limb of the Judicial Branch is currently incomplete, with several high-profile cases on the docket over the next few months. The President was elected by the American people to do his duties for full four year terms. And Mitch McConnell, along with the Republican Senate Judiciary Committee have ducked their jobs, hiding behind political spinelessness to score political points with the most extreme aspects of their base, and to stick it to the President at least one more time. The Republican party has once again shown itself not as a responsible part of the American public trust, but as a gaggle of incredibly corrupt and complacent opportunists, preying on the fears of Americans, and stoking anti-government sentiment as a method of improving their own wealth and power.
Senators, you do not deserve your position, title, power, or prestige. You are not worthy of being considered public servants. You all should be ashamed, and unemployed. With any luck, the latter will one day be true.