One of the most honest statements about politics is that elections have consequences. Not just presidential elections, but from the selection of school board members to the mid-term elections.
The people selected to represent us will have the power to enact or block policies that affect us each and every day. One of those consequences happens to be filling a vacancy on the Supreme Court. This will not be the first time a nomination to the Supreme Court will be politicized, nor the last.
We find ourselves embroiled in another faux controversy for many reasons, but most particularly because elections have consequences and some our representatives have a misguided sense of duty; a sense of duty driven more by political desires than constitutional responsibilities. If political motives were not the undercurrent of almost every conflict and coalition in D.C., than both sides of this current argument might have a historical and constitutional “leg to stand on.” The dysfunction that permeates our nation’s capital has created not only distrust, but a level of paranoia that has poisoned all three branches of our government.
The selection and confirmation process to fill a vacancy on the Supreme Court is relatively simple on paper and clearly stated within the U.S. Constitution : “…and he (the president of the United States) shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court…” Boiled down to its simplest terms, a vacancy opens on the court, the president selects a candidate and presents that person to the Senate, the Senate reviews the candidate’s qualifications (background check, sub-committee discussions, committee hearings), and then it votes “yea” or “nay.” Pretty straightforward for most people, not so much for the residents of D.C. This is where that whole “elections have consequences” thing comes into play.
Both the president and Senate have a constitutional duty in this process. In 2012, the people of America re-elected President Obama. In 2014, the people again spoke, and voted a Republican majority to the Senate. We are now seeing the effects of both elections. Democrats want President Obama’s nominee considered upon submission. Republicans want to wait until after the 2016 general election. In the end, both sides are politically motivated because of one simple fact. President Obama’s selection will most likely shift the balance of power of the Supreme Court.
We have been a closely divided court for more than a decade, with Justice Kennedy providing the more centrist, “tie-breaking” votes on some of the more controversial court cases. Democrats see this as an opportunity to shift the balance of the court to a more “liberal leaning” body. The Republicans, just as the Democrats would do (and have done), are rolling the dice that the next president might be more accommodating in their selection process. Republicans would prefer a candidate of the caliber of Justice Scalia, but could be convinced to accept a candidate in the mold of Justice Kennedy. However, the Senate has no control over who the president selects, only the approval process.
History has shown the Supreme Court has become an institution controlled more by a “jellybean” selection process, with both parties denying a litmus test exists, when anyone with commonsense knows better. Instead of selecting impartial, constitutional scholars, we select Supreme Court candidates like jellybeans. Many have attempted to influence the selection process by suggestion that the seats on the Supreme Court have racial, gender or political purity attributes, instead of selecting a justice with constitutional intellect and commonsense.
What is humorous is how Democrats are yelling obstructionism now, forgetting their own sordid history in the Supreme Court confirmation process. Democrats seem to have forgotten the actions of then-Sen. Teddy Kennedy and then-Sen. Joe Biden in 1987 and 1991 as they shamelessly made a mockery of the Senate Judiciary hearings when considering the nominations of Judge Bork (who was rejected by the Senate in a full vote) and current Justice Clarence Thomas. The Bork hearing in particular was a disgrace, with prominent law professor Stephen Calabresi (Northwestern University Law School) describing the Senate hearings led by Biden as a “negative landmark.”
Democrats are also showing absolute hypocrisy regarding the belief by the Republicans that a selection should be delayed until after the 2016 general election. In 2007, during a speech at a convention of the American Constitution Society, Sen. Chuck Schumer of New York stated if any new Supreme Court vacancies opened up, Democrats should not allow Bush the chance to fill it “except in extraordinary circumstances.” Politico also quoted Schumer during that same speech making it clear why he held such an opinion on the court: “We should reverse the presumption of confirmation. The Supreme Court is dangerously out of balance. We cannot afford to see Justice Stevens replaced by another Roberts, or Justice Ginsburg by another Alito.”
How about the comments made by then-Sen. Biden in 1992? Biden stated on the floor of the U.S. Senate (http://tinyurl.com/bidensupremenominee) that President George H.W. Bush should consider not naming a replacement during the election year if a Supreme Court justice were to resign. Biden stated if a Republican nominee was submitted, the Democratic-controlled Senate “should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.”
Let’s not forget President Obama himself played politics with the nomination of Justice Samuel Alito, when in 2006, Obama joined 23 other Democrat senators in an attempt to filibuster the vote on Alito’s nomination. Recently, Obama (as he has done in the past), stated he “regrets” the filibuster attempt now. During that mea culpa, Obama also made an interesting point when he stated “I think what’s fair to say is that how judicial nominations have evolved over time is not historically the fault of any single party. This has become just one more extension of politics.” Sadly, Obama is right in that regard.
The solution is simple. President Obama, submit your nominee, but choose wisely. The key should be submitting a candidate who can get past the process, not to shift the balance of the court, leaving the Senate to provide “advice and consent (or reject).”