15 February 2016
We are governed by the Constitution, not custom
In the ultimate proof that Republicans really don't care what anyone but their own kind thinks of them, the GOP apparently intends to make a stand against even holding hearings for anyone the President may nominate to fill Justice Scalia's seat on the Supreme Court. Their pathetic argument in defense of their position is that it is not customary for a President to nominate a Justice during an election year. What they seem to mean, as the record shows, is that it's uncommon for a President to nominate a Justice while the Senate is controlled by the opposing party. NBC News cites six instances of election-year nominations. In only one such case did the President and Senate majority belong to opposing parties, and in that 1956 case, although the Democratic-controlled Senate was in recess when President Eisenhower, a Republican, nominated William Brennan, the Democrats promptly confirmed Brennan, who ironically proved to be one of the Court's great liberals, when they returned to Washington in 1957. On four previous occasions, a President's nominee was confirmed by a Senate controlled by his own party. So the "custom" cited by Republicans now is pretty much a figment of their partisan imagination -- and if Justice Scalia actually had any integrity as an "originalist," I'd expect him to scoff from the grave at the GOP ploy, since this so-called custom is nowhere to be found in the Constitution of the United States. The President is under no constitutional obligation to defer to the Republican Senators' wishes or feelings on this matter. Unfortunately, the Senators probably have no enforceable obligation to bring an Obama nominee to a vote, or even hold hearings, before Election Day. No matter what they do, however, the succession to Scalia's seat is now, and will remain, a dominant election issue, and it can only hurt the GOP. The Republicans are taking a gamble, presumably, on the premise that anyone Obama might name could be dismissed as an unacceptable radical. That blows up in their face if Obama names anything close to a moderate, despite the litmus test already demanded by both Clinton and Sanders, who've said that anyone they'd nominate -- do you doubt that they're privately rooting against Obama on this one, no matter what they might say in public? -- must be committed, for starters, to overturning the Citizens United decision on campaign financing. This is almost a no-risk situation for Obama. It probably has never been easier to make the Republicans look like idiots to the entire country than it would be right now, and as a lame duck Obama himself has no consequences to worry about. It might be worth his while to screw over both Clinton and Sanders by nominating a moderate, without applying their litmus tests, since one of them is bound to benefit in November from the Republicans' mindless obstructionism. Since Justice Ginsburg will probably retire the moment the next Democratic President is inaugurated, it's not as if Obama's would-be successors won't get a chance to pick a Justice themselves. This is shaping up as such a perfect scenario for Obama and the Democrats that I'm surprised I haven't yet heard anyone say Scalia was murdered.