With the death of Antonin Scalia, President Obama was left with one final opportunity to create a lasting legacy, because appointing a Supreme Court justice is one of the most powerful and important things a president can do — it’s going to shape jurisprudence for decades and could result in legal precedents that echo for centuries. I think we all expected some drama surrounding the nomination because the GOP is filled with people who seem to be on a one-stop quest to be as obstructionist as possible rather than actually doing their jobs. What I think none of us realised was how determined they would be to not only force the president to nominate a conservative extremist, but to actually block the president from directly doing his job.
When it comes to Supreme Court justices, the role of the president is clearly set out. After a vacancy on the court arises, the president reviews fit legal minds, considers their experience and qualifications as well as positions on key legal issues, and nominates one who’s likely to interpret and defend the Constitution in line with the court’s role of interpreting, not making, the law. Then the Senate has to ‘advise and confirm,’ putting the nominee through a series of confirmation hearings to determine if they’re truly suited to the role and then voting as a body on the subject to approve the appointment.
The practice of lengthy hearings actually isn’t enshrined in the Constitution, something that I suspect may come as a surprise to conservatives — it came about in the early 20th century. Since then, the nature of hearings has become more and more grueling, and battles over nominations have become extremely bitter. That’s resulted in some bad things for the court, because it gets impossible to appoint justices on any extreme end of the political spectrum and often results in tepid moderates who don’t really add to the court’s balance and diversity.
This reflects larger problems with the U.S. political system. A Democratic Senate will never support a staunch conservative, while Republicans won’t approve a liberal justice. Consequently, everyone loses as presidents stick to the middle of the road with candidates rather than being forced to withdraw nominations — something has happened a handful of times. The result has been a less robust court, but in the end, the Senate has eventually agreed to sit down, discuss nominations, and vote on them. With Scalia’s death, however, within hours Republicans were vowing to oppose any Obama nominee, and they indicated that they would refuse to actually hold any hearings at all until the ‘next president’ takes office.
At least some chunk of the public recognises this for what it is. No nomination fight has dragged out over nearly a year (three months and change is actually the current record), and Congress is effectively claiming that they won’t respect the president’s authority in his last year of office, period, no ifs, ands, or buts. Despite the fact that the Senate has had no problem approving other nominees in previous final presidential terms so it’s not like this is some radical precedent. This is deeply disturbing, because the fact of the matter is that Barack Obama remains the President of the United States and he has a clear legal mandate to do his job, which includes nominating justices.
Leaving any judicial seat open is a problem, as it can contribute to backups in the legal system — and the president has found it really difficult to fill many seats because of conservative obstructionism. In this case, though, leaving a seat on the Supreme Court unfilled for a year is really a gross dereliction of duty, and the Republicans should know it. We must have nine justices, given that 5-4 votes are not uncommon, a missing justice can make it harder to achieve quorum when justices recuse themselves, and the court as a whole benefits from debate and discussion about the cases they consider.
It’s a crafty move — it allows them to claim that the president ‘didn’t do his job’ (even though they are preventing him from doing it) while also hoping to angle for a conservative justice if they think they can successfully get a Republican in the White House while holding Congress. Meanwhile, they seem to believe that it will appeal to the Republican base, which appears to delight in these kinds of performative political escapades. The more Republicans don’t do their jobs, the more hardcore conservatives support the party, which is really frustrating and bizarre — opponents of ‘big government’ I suppose think that one way to accomplish their political aims is to bring the government to a literal shutdown in some instances.
But is there a point at which Republican obstructionism is going to stop working, and will in fact backfire on the party? I keep fervently hoping that we’re going to reach it, because this country is suffering tremendously as a result of a refusal to sit down and get to work. More moderate Republicans must be experiencing at least some frustration over the issue, and those more to the right can’t believe this is a good thing — repeatedly throwing tantrums isn’t a good look for full-grown adults who should surely be able to conduct themselves with more responsibility. However, thus far it seems like conservatives are lapping it up, often in contravention of the very icons of their own party.
Image: The U.S. Capitol, Brandi Korte, Flickr