There is a lot of hyperbole on both sides over the possible replacement for Justice Scalia on the Supreme Court. Obama’s most recent “news conference” at Rancho Mirage, statements by Republican presidential candidates and Senators, and editorials by Harry Reid aside, these myths usually have some shred of truth, but generally a greater lack of evidence to back up the assertions.
Myth #1- “An 80 Year Tradition”
This would take us back to 1935 as our starting point. To the extent there is a tradition, it is only because Supreme Court vacancies in a Presidential election year are rare. But to suggest that there is some unwritten rule is false. In fact, since 1935 there have been four Presidential election year nominations to the Supreme Court- two successful and two unsuccessful. They are Frank Murphy in 1940, William Brennan in 1956 (a recess appointment), and Abe Fortas and Homer Thornberry in 1968. In both successful nominations, the President was running for reelection while Johnson was not in 1968.
Myth #2- Obama Cannot/ Should Not Nominate Anyone
Obama is President until a new one is sworn in on January 20, 2017. This gives him roughly 10 months to fulfill his Article II duties among which is to make nominations for Executive department positions and the Judiciary. Again, we are talking about unwritten rules for lame duck presidents. However, he is clearly within his Constitutional rights to nominate someone. Because lame duck Presidents have deferred to the unwritten rule in the past with respect to the Judiciary, that generally applies to the lower courts. Although nominated in 2015, the Senate has already confirmed four federal judges in 2016. Whether he should or not is another question entirely and from a political perspective, it would be foolhardy for Obama not to name a nominee to the Supreme Court and possibly an abrogation of his Constitutional duties not to make a nomination. If truthful, if the situations were switched, a Republican President in the last year of his term would make a nomination to replace a liberal Justice. Also, if Ginsburg or Breyer- more liberal Justices had passed away, the temperature of the rhetoric would be much lower since replacing a liberal with a liberal does not upset the balance on the Court.
Myth #3- The Senate Has to Act on the Nomination
Actually, of the 36 Supreme Court nominees “rejected” by the Senate since the Washington administration, the Senate took no action on the nomination in nine instances. The Senate has many tools at their disposal to hold up any nomination made by Obama and although the Democratic minority can attempt to thwart those efforts, the obstacles are often difficult to overcome. For example, Senators can place a hold on the nomination and tag-team such holds every two legislative days. If all 54 Republican Senators did so, they could slow down the nomination for 108 days without any action. Furthermore, Senate inaction would fulfill that body’s advise and consent duties by, in effect, expressing an unstated disapproval of the nomination. There is nothing in the Constitution that says the Senate must act on the nomination. A perfect recent example was holding up the nomination of Loretta Lynch for 17 months.
Myth #4- The Court Cannot Function With Eight Justices
Again, this is patently false. On many, many occasions the Court has functioned quite well with eight Justices. Justices throughout our history have fallen ill during a term and the Supreme Court went on with nary a glitch. A perfect example that approximates the current circumstances occurred in 1954 when Justice Robert Jackson died one week into the term. His replacement- John Marshall Harlan II- was not confirmed until March 17, 1955. Hence, the October 1954 term was an 8-member Court for practically that entire term. Most recently, the Court functioned as an 8-member Court at the beginning of Kagan’s term since she recused herself from numerous cases.
Myth #5- A Constitutional Crisis
Dred Scott was a Constitutional crisis since it directly led to a bloody Civil War. Nixon vs. United States was a Constitutional crisis. Some can claim that Bush vs. Gore was a Constitutional crisis (not me). But an 8-member Court is not a “Constitutional crisis.” It is not even a minor emergency. Most of the fear-mongering here involves consternation over the possibility of 4-4 tie cases. To begin, the vast majority of opinions are not 5-4 decisions. To the degree there are 4-4 ties, the lower court decision is simply affirmed and the opinions have no binding precedent on lower courts. What likely happens is that those cases are reheard when there are nine members on the Court some time in the future.
Myth #6- The Recently Approved Nominee
Conventional wisdom says that Obama will nominate someone who recently went through the vetting and confirmation process and succeeded. Let’s use DC Cicuit Judge Sri Srivinasan as an example. He sailed through the hearings and was approved by the Judiciary Committee 18-0 and by the full Senate 97-0. By all accounts, he should be the ideal candidate. After all, what could be the difference between 2013 and 2016? First, Democrats held the majority of the Senate in 2013. Second, the DC Circuit, although important, is qualitatively different than the Supreme Court where the stakes in a decision are much higher. Third, although there only three years, he has authored at least five decisions that would and should give Republicans pause. And fourth is precedence. Robert Bork joined the DC Circuit after a voice vote approval (not even a roll call), but was rejected for the Supreme Court position five short years later. Because they recently survived the confirmation process should be no excuse for rubber stamping a nomination to the Supreme Court.
Myth #7- Kennedy Was Approved in a Presidential Election Year; So Should Obama’s
Technically true, but patently false. Obama and his supporters ignore historical facts with this claim. Anthony Kennedy was nominated in November 1987 (not an election year) for a vacancy that arose in June of 1987. It was only after the contentious Bork hearings, debate and rejection and the withdrawal of Douglas Ginsburg (when it was revealed that he did something Bill Clinton never did- inhale a joint) that Kennedy was nominated and eventually approved. The Anthony Kennedy example is like comparing apples to oranges, but already the mainstream media is claiming that Reagan’s request to confirm Kennedy occurred in a Presidential election year and that today’s GOP arguments are hypocritical. Yet, they completely ignore the 1968 Fortas nomination which is more analogous.
Myth #8- Qualifications
Obama is under the mistaken impression that any nominee has to be approved provided they pass a background check, full financial disclosure and the pedigree of their law degree and/or judicial experience is examined. If it were that simple, there would not have been 36 rejected Supreme Court nominees in American history. Stating there are no litmus tests is hypocrisy on both sides. Because…
Myth #9- Leave Politics and Ideology Out of It
If there is any tradition with respect to Supreme Court nominees, it is that they are often rejected on political or ideological grounds. In fact, the Congressional Research Service noted in a 2010 report that 16 of the 36 rejected nominees in history were rejected on ideological grounds. Under Washington, John Rutledge was rejected over his criticisms of the Jay Treaty. In 1810, Madison nominee Alexander Wolcott was rejected over the Embargo Act and the Non-Intercourse Act. Andrew Jackson’s appointment of Roger Taney was rejected simply because of the Senate’s disapproval of Jackson’s policies in general. Pierce Butler was rejected in 1922 because he was considered too pro-corporation. And although other reasons are cited, the rejection of Abe Fortas in 1968 was highly attributable to a Senatorial dislike of the leftward leanings of the Warren Court. There is a long and rich history of rejecting nominees on ideological grounds or for political purposes. Obama’s Utopian vision does not square with historical fact.
Myth #10- No Action By or Rejection in the Senate is Obstruction
One man’s due diligence, in keeping with Senate precedence, and in exercising their Constitutional advise and consent role is another man’s obstruction. Simply put, it sucks to be in the minority in the Senate. It sucks even further when there are numerous tools available to the majority and too many obstacles for the minority to overcome. But, these are the Senate rules enacted by a Democratic-majority Senate- rules they now rail against. It is also more than hypocritical to trot out the obstruction charges in light of recent history regarding Democratic obstruction against Bush appointees. The leaders of those filibusters were Patrick Leahy, Charles Schumer and Harry Reid. A President with no real regard towards the Constitution now wraps himself in the Constitution. This is the same man who helped lead a filibuster against Samuel Alito. One can almost guarantee that if a Republican wins the Presidency in 2016 and someone like Ginsburg retires in 2017, the Democrats will resort to the very tactics the Republicans must use now. They have a proven, rich history of hypocrisy.
Myth #11- The Vulnerable Republican Senators
First, of the ten Republicans on the Senate Judiciary Committee, only one- Charles Grassley- is up for reelection this year and he is a safe bet to win no matter what he does. There are three vulnerable Republicans up for reelection- Kelly Ayotte, Ron Johnson and Mark Kirk. Regardless of where they stand on Scalia’s replacement and how it should be handled, they face a tough fight either way. They need not weigh in unless and until it reaches the full Senate. Until then, they should adopt the generic “wait and see” comment.
Second, the truly informed voters understand the importance of the Scalia loss and his replacement. But according to most polls, although voters respect the Supreme Court, they do not consider it all that important in electoral politics. In short, Republican maneuvering and Democratic charges of obstruction would largely fall on deaf ears to the average Joe voter, although rest assured Hillary Clinton will play this fear-mongering card for all it is worth.
Third, the longer the process is dragged out, the greater the Republican argument to hold the nomination until after the election. In that way, Obama becomes a lamer duck President than he is now and it bides time to…
Fourth, the GOP must be framing the argument now to thwart Democratic accusations later. That film of Schumer from 2007 should be stock footage in the battle. Obama saying he was “sorry” for the filibuster of Alito should also be used. If necessary, adopt the Kennedy scorched earth policy he took against Robert Bork and let the voters know that the balance of the Court lies in the wind. It is one vote away from codifying preferential treatment, of allowing abortion on demand including partial birth abortion, of taking away your right to defend yourself and family, that religious liberty is at stake, that free political speech is at stake, and that the government closest and most accountable to the people (state and local) will be subjugated to Washington’s whims.
The Real Only Truth- Obama Reaps What He Has Sown
In 1968, when Earl Warren tendered his resignation, Lyndon Johnson attempted to elevate Associate Justice Abe Fortas to Chief Justice. Fortas had passed the confirmation process just three years previous. Lyndon Johnson enjoyed a Senate where the Democrats outnumbered Republicans almost 2 to 1. Most importantly, Johnson is known as one of the greatest tacticians in the Senate whether you like or hate him or his tactics. Further, Lyndon Johnson’s relationship with Congress and members of the opposition party were very good. At least there was open communication. Sienna College polled history professors who ranked LBJ #1 in forging a working relationship with Congress. And even he could not get Fortas confirmed.
Compare that with Obama who will likely rank down there with Andrew Johnson in dealing with Congress. He has forged no friendships and working relationships with any Republicans. It can be summarized in what he told the Republican leadership in 2009: “I won!” Obama’s imperial attitude poisoned the well almost from day one seven years ago. He was right in a sense in 2009- elections have consequences, and the GOP winning the Senate in 2014 also has consequences. Instead, he has shown utter disdain for the Republican-led Congress and its members. He has continually flouted the extreme fringes of executive power and even once argued the President can determine when the Senate is in session or not (the Supreme Court rejected that argument 9-0). It is the Obama attitude that started it all and Ted Kennedy’s (among others) scorched earth tactics in 1987 against Robert Bork that created today’s political climate surrounding Supreme Court nominations. The only thing needed now is for Republicans to show the same strength and commitment the Democrats showed in 1987 against Robert Bork.
This is not some infantile instance of “they started it” or “turnaround is fair game.” This is the Senate doing their Constitutional duties. If they should cave on this issue, then surely it could spell the death knell of the Republican Party. It is important that they stand their ground and stand for something and the ideological balance on the Supreme Court that can be influenced by a President Congress should not trust and has shown a disregard for the Constitution is something truly for which to stand up.