Small World: The Supreme Court and the election returns

Henry Precht

Henry Precht

By Henry Precht

BN Columnist

Yet another political conundrum! What a season for baffling decisions! First comes the shocking death of Supreme Court Justice Antonin Scalia. Then, almost immediately thereafter, comes the announcement from Republican Senate Majority Leader McConnell that the president should forbear to name a successor and leave that task to the new president to be elected in November. No hearings would be held if President Obama insists on sending a name to the Senate for confirmation or rejection.

Quickly, like performing animals at a circus, all Republicans of note sign on to this position while the president says he will fulfill his constitutional responsibility to send a nominee to the Senate for the performance of its constitutional role of approval or disapproval. Then, Senator Grassley, chairman of the Senate Judiciary Committee, changes his position and says he might well hold hearings on the nominee.  Pressure is on McConnell to back down.

Is there a sinister hand at work here? Or is it what Talleyrand almost said, “Worse than a crime, it is a mistake?”

Talleyrand on target again! But why did McConnell commit such a stupid move? I suppose he was confident that a Republican will prevail in the November presidential poll and a Republican Senate will approve the new president’s nominee after Jan. 20, 2017. That will assure an apt successor to the deeply conservative Scalia will be named to the court. Obviously, McConnell must have thought, the president would have no choice: acquiesce in the delayed nomination or face humiliating defeat through Senate action (or inaction).

I suppose also that McConnell did not believe he could absolutely hold his Senate majority intact and that some independent minds might decide to cross the aisle and vote to approve the president’s choice. I suppose that the majority leader calculated that the president might pick someone who might be strongly attractive to some Republican senators and/or to the voting public. Better to keep such a nomination from a vote.

Filling this vacancy is a huge deal: Assuming Obama names and the Senate somehow approves a moderate-minded jurist (as has happened when Republican presidents on occasion nominated jurists who turned out less than ultra conservative) the 5-4, conservative-guaranteed majority could become — depending on the new justice — a 5-4 liberal majority.

By the time you read these lines, you might know the name of the president’s nominee and how shrewdly calculating and politically savvy the president was in his selection. A wise choice by him could also have the effect of increasing the Democratic voter turnout, or drawing support from Republican voters and senators or both. Plus, an adroit nomination confronted by highly negative Republican rhetoric on the Senate floor might help convince voters that the GOP was the primary source of the highly unpopular, toxic gridlock in Washington.

In fact, if voters looked into the back-story of this drama, they might already be convinced of the iniquity of the Republican leadership. There is a long line of presidential appointees to federal courts (as well as nominated ambassadors and other presidential appointees) whose names lie unconfirmed on the Senate floor. It didn’t use to be that way. It used to be that a popularly elected president was recognized — albeit often grudgingly — as having the right to choose his team. Only nominees accused of extreme flaws would be rejected in the old, distant days of relative legislative harmony. The exceptions to that rule were rare; the unanimous approval of nominees was more common.

A debate over who is to be the replacement justice could lead into some sensitive areas that the Republican establishment might just as well skip over lightly during the election season: Abortion, gay rights, Obamacare and affirmative action. Most importantly, a Supreme Court with a new majority could undo its permissive position on the role money plays in American politics (Citizens United). A new, moderate justice could reverse the judgment of the Republican-led Supreme Court that has allowed big bucks to become such a major impediment to our democracy.

Were Justice Scalia alive today, he (an “originalist”) might well object to Mr. McConnell’s threat to depart from constitutional procedures. Were Talleyrand alive, he might well say that the only thing worse than a mistake is an intentional violation of a constitutional directive.

Henry Precht is a retired Foreign Service Officer.

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