Perhaps the most important thing Washington will do this year is decide whether to approve President Barack Obama’s nominee for the Supreme Court. But Republicans have already announced their decision: “No way!”
It’s rich for Republicans to declare pre-emptively that they will not even hold hearings on an Obama nominee, considering that they used to denounce (while their party held the White House) the notion that judges’ nominations shouldn’t proceed in an election year.
“That’s just plain bunk,” Sen. Charles Grassley, an Iowa Republican, said in 2008. “The reality is that the Senate has never stopped confirming judicial nominees during the last few months of a president’s term.” His sense of reality has since changed.
Sen. Lamar Alexander, a Tennessee Republican, said in 2008, “Just because it’s a presidential election year is no excuse for us to take a vacation.”
In fairness, Democrats also have been hypocritical. In 1992, when George Bush was president, then-Sen. Joe Biden said an election-year vacancy should wait to be filled the next year.
A pox on all their houses!
Let’s tune out politicians’ rhetoric in both parties and look at the merits of the arguments. Supreme Court justices don’t die in office very often, and in recent decades they have mostly chosen to step down before election years. But despite what Republican senators would have you believe, there have been a number of Supreme Court vacancies filled in election years.
In the 20th century we had six:
▪ In 1912, the Senate confirmed Mahlon Pitney, nominated by William Howard Taft.
▪ In 1916, the Senate confirmed both Louis Brandeis and John Clarke, nominated by Woodrow Wilson.
▪ In 1932, the Senate confirmed Benjamin Cardozo, nominated by Herbert Hoover.
▪ In 1940, the Senate confirmed Frank Murphy, nominated by Franklin Roosevelt.
▪ In 1988, the Senate confirmed Anthony Kennedy, who had been nominated by Ronald Reagan the previous November.
A counterexample is Abe Fortas, whose nomination to be elevated from associate justice to chief justice in the summer of 1968 was killed by a filibuster by Republicans and Southern Democrats. But that’s a horrifying bit of history for Republicans to rely upon, because the main reasons for opposition to Fortas were that he favored civil rights and was Jewish. His ethical lapses mostly emerged later.
Republicans suggest that it’s standard for a Supreme Court vacancy to be held over when it occurs during an election year. Since 1900, I can find only one example of that happening — in the fall of 1956, after Congress had adjourned and Senate confirmation was impossible.
It’s ironic that this tumult should bedevil a replacement for Antonin Scalia, who emphasized the constitutional text. The Constitution gives no hint that the Senate’s “advice and consent” for nominations should operate only in three out of four years.
If Republicans block Obama’s nomination, Scalia’s vacancy will last more than a year, compared with a historical average of resolving nominations in 25 days. To date, the longest Supreme Court nomination in American history lasted 125 days, and it looks as if we will easily break that record this year.
The larger issue here is obstructionism. When I was growing up, the GOP was the serious, prudent, boring party, while the Democrats included a menagerie of populists, rascals and firebrands. Today it’s the GOP that embraces the George Wallace demagogues, and its aim is less to govern than to cause gridlock. That’s not true of everyone — the House speaker, Paul Ryan, seems to have genuine aspirations to legislate. But to be a Republican lawmaker today is too often to seek to block appointments, obstruct programs and shut down government. Politics becomes less about building things up than about burning them down.
Both parties are open to expanding the earned-income tax credit, to early childhood programs, to better approaches to heroin addiction, to supporting women with obstetric fistula, to reducing violence against women worldwide. Yet practical measures to address these issues stall in Congress.
The party of Lincoln is now the party of “No,” refusing even to invite the president’s budget director to testify on an Obama budget, as is customary. Congress is expected to accomplish next to nothing this year.
Donald Trump and Ted Cruz are the apotheosis of this disregard for governing. Cruz’s entire congressional career has involved antagonizing colleagues and ensuring that nothing gets done. And Trump barely bothers with policies, just provocations.
All this is ineffably sad. I expect politicians to exaggerate and bluster. But I also expect them to govern, and that is what many in the Grand Old Party now refuse to do.
In that case, should they really be paid? Just as we have work requirements for some welfare recipients, maybe it’s time to consider work requirements for senators.