Let’s understand something about the fight to fill the Supreme Court seat of Antonin (“Nino”) Scalia. This is about nothing but raw power. Any appeal you hear to high principle is phony — brazenly, embarrassingly so.
In Year Seven of the George W. Bush administration, Senator Chuck Schumer publicly opposed filling any Supreme Court vacancy until Bush left office. (“Except in extraordinary circumstances.” None such arose. Surprise!) Today he piously denounces Republicans for doing exactly the same for a vacancy created in Year Eight of Barack Obama.
Republicans, say the Democrats, owe the president deference. Elections have consequences, and Obama won reelection in 2012.
Yes. And the Republicans won the Senate in 2014 — if anything, a more proximal assertion of popular will. And both have equal standing in appointing a Supreme Court justice.
It’s hard to swallow demands for deference from a party that for seven years has cheered Obama’s serial constitutional depredations: his rewriting the immigration laws by executive order (stayed by the courts); his reordering the energy economy by regulation (stayed by the courts); his enacting the nuclear deal with Iran, the most important treaty of this generation, without the required two-thirds of the Senate (by declaring it an executive agreement).
Minority Leader Harry Reid complains about the Senate violating precedent if it refuses a lame-duck nominee. This is rich. It is Reid who just two years ago overthrew all precedent by abolishing the filibuster for most judicial and high executive appointments. In the name of what grand constitutional principle did Reid resort to a parliamentary maneuver so precedent-shattering that it was called “the nuclear option”? None. He did it in order to pack the U.S. Circuit Court for the District of Columbia with liberals who would reliably deflect challenges to Obamacare.
On Tuesday, Obama loftily called upon Congress to rise above ideology and partisanship in approving his nominee. When asked how he could square that with his 2006 support of a filibuster to stop the appointment of Samuel Alito, Obama replied with a four-minute word-salad signifying nothing. There is no answer. It was situational constitutional principle, i.e., transparent hypocrisy.
As I said, this is all about raw power. When the Democrats had it, they used it. The Republicans are today wholly justified in saying they will not allow this outgoing president to overturn the balance of the Supreme Court. The matter should be decided by the coming election. Does anyone doubt that Democrats would be saying exactly that if the circumstances were reversed?
Which makes this Senate majority leader Mitch McConnell’s moment. He and his cohorts have taken a lot of abuse from “anti-establishment” candidates and media for not using their congressional majorities to repeal Obamacare, defund Planned Parenthood, block executive orders, etc.
What was the 2014 election about, they say? We won and got nothing. We were lied to and betrayed by a corrupt leadership beholden to the “Washington cartel.”
As it happens, under our Madisonian Constitution, the opposition party cannot govern without the acquiescence of the president, which it will not get, or a two-thirds majority of the Congress, which it does not have.
But no matter. Things are different now. Appointing a Supreme Court justice is a two-key operation. The president proposes, the Senate disposes. There is no reason McConnell cannot hold the line. And he must. The stakes here — a radical generation-long reversal of direction of the Supreme Court — are the highest this Senate will ever face.
If McConnell succeeds, he will have resoundingly answered the “what did we get for 2014?” question. Imagine if the Senate were now in Democratic hands. What we got in 2014 was the power to hold on to Scalia’s seat and to the Court’s conservative majority.
But only for now. Blocking an Obama nominee buys just a year. The final outcome depends on November 2016. If the GOP nominates an unelectable or unconservative candidate, a McConnell victory will be nothing more than a stay of execution.
In 2012, Scalia averred that he would not retire until there was a more ideologically congenial president in the White House. “I would not like to be replaced,” he explained, “by someone who immediately sets about undoing everything that I’ve tried to do for 25 years.”
Scalia never got to choose the timing of his leaving office. Those who value the legacy of those now-30 years will determine whether his last wish will be vindicated. Let McConnell do his thing. Then in November it’s for us to win one for Nino.