“The Unprecedented ‘Precedent'”: What Kind Of Dictator Must Obama Be To Oppose 80 Years Of “Standard Practice”?
How can you tell the seemingly unanimous position of the Republican Party that President Barack Obama should not be permitted to select the late Supreme Court Justice Antonin Scalia’s successor is motivated by something other than apolitical concern for the republic? You can start by looking at the ways that their main talking point – that such an election-year nomination hasn’t been confirmed in 80 years – is both factually incorrect and more broadly intellectually dishonest and a novel reinterpretation of “precedent.”
Eighty years has become a truly magical number in the day since Scalia shuffled off this mortal coil. “The fact of the matter is that it’s been standard practice over the last 80 years to not confirm Supreme Court nominees during a presidential election year,” Republican Senate Judiciary chair Chuck Grassley said. Standard practice! What kind of dictator must Obama be to oppose 80 years of standard practice? “It has been over 80 years since a lame duck president has appointed a Supreme Court justice,” Florida Sen. Marco Rubio said in the Republican presidential debate Saturday night; “We have 80 years of precedent of not confirming Supreme Court justices in an election year,” Texas Sen. Ted Cruz echoed.
Flim-flam and jiggery-pokery.
Just as a factual matter, as has been widely noted, Reagan nominee Anthony Kennedy was (unanimously) confirmed to the court in February 1988 – not only an election year but a year in which Reagan was term-limited and could not run again. So just right off, the talking point is wrong. (Grassley, by the way, broke with his own self-professed “standard practice” and voted to confirm Kennedy.)
But! But! But Kennedy was nominated in 1987, so he doesn’t count, right? When was the last time in history that a president nominated someone for the court in an election year and the Senate confirmed them? That would be Franklin Roosevelt nominating Frank Murphy, then the attorney general, on Jan. 4, 1940, and the Senate confirming him 12 days later. So that was 76 years ago, which is still less than the enchanted “80” benchmark.
So where does the 80-year figure come from? So far as I can tell – through a cursory bit of Googling – it originated with a National Review post from Ed Whelan at 5:32 p.m. yesterday, some minutes after the news of Scalia’s untimely demise started to spread around the country. Points to Whelan for quick research but note how he phrased his item: “It’s been more than 80 years since a Supreme Court justice was confirmed in an election year to a vacancy that arose that year, and there has never been an election-year confirmation that would so dramatically alter the ideological composition of the Court.” He was referring to Benjamin Cardozo, “confirmed in March 1932 to a vacancy that arose in January 1932,” 84 years ago.
Note the rhetorical evolution from Whelan’s careful phrasing (“… in an election year to a vacancy that arose that year”) to the more widely promulgated talking point as expressed by, say, Grassley (“standard practice over the last 80 years to not confirm Supreme Court nominees during an election year,” period) or Cruz (“80 years of precedent of not confirming Supreme Court justices in an election year”).
Details, details, right? Do they matter? Well, yes, they do. Cruz, Grassley and anyone who repeats the assertion that there’s 80 years of precedent against confirming nominees in an election year is, in fact, wrong.
And the difference is important for a couple of reasons: First, imprecision reflects the questionable logic of the alleged precedent: that Obama’s “lame duck” status – lame duck traditionally means that his successor has been chosen, not that at some point in the future he’ll definitely be out of office – should deprive him and relieve senators of their constitutional duty. How better to justify this notion than by invoking tradition. But this is not a tradition of nonconfirmation in an election year (Kennedy was confirmed) or of presidents not nominating in an election year (Lyndon Johnson nominated Abe Fortas and Homer Thornberry in 1968) or of only confirming in an election year if the nomination came in the previous year (Murphy), but of not confirming in an election year when the vacancy occurred in that year.
That’s a much narrower standard than is being broadly bandied about. But it has to be or else the 80-year “standard practice” becomes less impressive: 76 years, or 48 years or 26 years.
The beauty of 80 years is that it sounds like an awfully big number – saying that the GOP is merely abiding by the “standard practice” of 80 years makes it sound routine, as if this is something that’s come up time and again over eight decades and is a settled matter. But since Cardozo was confirmed this narrowly drawn set of circumstances has arisen … once. Once! One instance in eight decades does not “standard practice” make.
Neither does it make 80 years of precedent. In fact it’s the opposite of precedent: The fact that 84 years ago Cardozo was nominated and confirmed to an opening that arose in an election year is actually precedent for – wait for it – considering an Obama nominee.
So if not respect for venerated precedent, what is going on here? Simple: The GOP neither wants to put another Obama nominee on the court nor allow its ideological balance to tip – especially when there’s a nontrivial chance that a year from now they’ll be able to replace Scalia with someone of like philosophy.
Does anyone think that if Scalia had died in December – before the election year – that the GOP reaction would be at all different? Or that in an alternate reality Senate Majority Leader Mitch McConnell is telling President Mitt Romney that a Supreme Court nomination won’t be considered because he’s in the last year of his term?
The party is putting governing on hold in the name of political calculation. Republicans should own up to it and drop both the “80-year” talking point and the larger pretense of principle.
By: Robert Schlesinger, Managing Editor for Opinion, U.S. News & World Report, February 14, 2016
“History Isn’t On Their Side – And Neither Is The Calendar”: Justice Kennedy’s Confirmation Debunks Key GOP Talking Point
Soon after Supreme Court Justice Antonin Scalia’s death was announced, Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) said in a statement, “The fact of the matter is that it’s been standard practice over the last 80 years to not confirm Supreme Court nominees during a presidential election year.”
The fact of the matter is the chairman of the Senate Judiciary Committee should have done his homework before getting this wrong.
The “80 years” talking point spread like wildfire in Republican circles – it was repeated by Ted Cruz and Marco Rubio during Saturday night’s debate – to the point that the GOP has convinced itself that at no point in the modern era has the Senate confirmed a Supreme Court justice in an election year.
About 14 justices were confirmed in election years, and perhaps the most pertinent example is Justice Anthony Kennedy. As the Washington Post’s E.J. Dionne noted this morning:
A Senate controlled by Democrats confirmed President Reagan’s nomination of Anthony Kennedy on a 97 to 0 vote in February 1988, which happened to be an election year.
Yes, in Reagan’s eighth year, nine months before Election Day 1988, the Democratic-led Senate confirmed Kennedy with ease.
Chuck Grassley, who’d already been in the Senate for seven years at that point, delivered remarks on Feb. 13, 1988 – exactly 28 years to the day before Scalia’s passing – urging the Senate to confirm Kennedy during that election year.
Grassley voted for Kennedy’s nomination on the Senate floor soon after. So too did a young man by the name of Mitch McConnell, a Republican senator from Kentucky in his first term.
At the time, Ronald Reagan, stung by two failed nominees to the high court (Douglas Ginsburg and Robert Bork), said at the time that if Senate Democrats played election-year games by stalling on Kennedy’s nomination in 1988, the “American people will know what’s up.”
And on this, he was correct.
But we know, of course, that Democrats didn’t bother. There was a vacancy on the Supreme Court; the White House nominated a qualified and credible jurist; the Senate considered his qualifications; and he was confirmed in an election year without much of a fuss – even though the Senate was controlled by Democrats and Reagan was a Republican president.
It’s true that Kennedy was first nominated in late 1987, but the point is the right is now arguing that election-year confirmation votes have no modern precedent. Or as Grassley put it, “[I]t’s been standard practice over the last 80 years to not confirm Supreme Court nominees during a presidential election year.”
The Kennedy example proves otherwise.
If this were December 2016, Senate Republicans would be in a far better position to balk. But it’s mid-February, and the Senate’s to-do list for the next several months is quite thin. History isn’t on their side – and neither is the calendar.
By: Steve Benen, The Maddow Blog, February 15, 2016
“The GOP’s Worst Nightmare SCOTUS Nominee”: Let America Watch Republicans Tie Themselves In Knots
Here’s a name you need to get to know: Tino Cuellar. Who is Tino Cuellar? The potential Supreme Court nominee who could tie the Republican Party in the most Gordian knots of any of them, and who could thereby alter the presidential race dramatically as well.
Yes, yes; Barack Obama should choose the person best qualified for the job with whom he is most intellectually comfortable. But should that person be Mariano Florentino Cuellar, there could be plenty of benefits aside from having a brilliant, young, Latino person on the Court.
Cuellar, 43, is an associate justice on California’s State Supreme Court. He was born in Mexico. He is a naturalized U.S. citizen. He grew up on the border, and his family moved to California’s Imperial Valley when he was a teenager. He was smart and decided he wanted an education. He got one, all right. Get this resume: undergrad, Harvard; law school, Yale; master’s and doctoral degrees, Stanford.
Here’s his full Stanford bio, so you can give it a gander, but it’s incredibly impressive. He worked at the White House, he worked in the Treasury Department, he taught law at Stanford. “He’s a brilliant guy,” says Samuel Bagenstos, a law professor at the University of Michigan who knows Cuellar. “He’d be the justice with the most wide-ranging intellect since William O. Douglas.” (Bagenstos asked me to note that he is backing no single candidate and thinks the president has many good choices.)
He was elevated to California’s high court by a unanimous bipartisan vote, and given the highest possible rating by the California Bar Association. He is married to a U.S. District Judge, Lucy Koh, who is a formidable intellect in her own right—the Senate confirmed her unanimously, 90-0, when Obama nominated her to that position in 2010. And they have two kids.
Now assuming there’s no skeleton in the old closet, suppose Obama sends Cuellar up to be nominated. Oh what fun it shall be.
We know almost to a certainty that the Republicans will oppose anyone. Mitch McConnell said it, all the presidential candidates said it, everyone says it, and everyone knows it. For a Republican senator to vote for Barack Obama’s replacement of the great Antonin Scalia would be as sure a form of instant political suicide as one can imagine in this country. There is just no way. And it may not even get to a vote. They’ll just sit on it, not even scheduling confirmation hearings, saying the American people deserve a voice in this nomination.
And Obama will say, as I noted yesterday, that I’m still the president and am going to be president for a while yet, and we have no modern precedent for letting the Court have an even number of members.
And then Americans will learn about Cuellar’s life story. The fancy universities, the four degrees, the testimonials to his intellect that will stream in. And of course he’d be not the first Latino, but still, the second out of nine, and the first Mexican-American (Sonia Sotomayor is Puerto Rican), who constitute by far the largest demographic group among American Latinos.
This is Reince Priebus’s perfect nightmare, is it not? Let America watch as old white-guy senator after old white-guy senator goes on TV to say “Oh, it’s nothing against Mr. Cuellar, it’s all about Obama, and the people’s voice.” And let America watch as nominee Donald Trump says the same thing. Or even Marco Rubio or Ted Cruz—in some ways that’s even worse for the GOP, to have a Cuban-American (or Cuban-Canadian-American) stand up and say this Mexican-American doesn’t belong on the Supreme Court. There are around 33 million Mexican-Americans in the country—and around 2 million Cuban Americans. How well do you think the math on that works for the GOP?
So Priebus, who in his silly little autopsy in 2013 insisted that Republicans were going to be the inclusive party and who still has the gall to talk like that today, even as his party’s voters convert a howling xenophobe into their front-runner, would have quite a situation on his hands. And we get to Election Day, and poor Cuellar has been sitting there for seven months after nomination without even having had the courtesy of a committee hearing.
What percentage of the Latino vote is the Republican nominee going to get then, if the party has precipitated a veritable constitutional crisis by refusing to perform its constitutional role and refusing to vote for this obviously qualified man? Maybe 12, 15, 18 tops? Tops. Remember, Romney got 27 percent, and it was considered a disaster. If the GOP nominee gets 18, winning Florida is an impossibility. And if winning Florida is an impossibility, then winning the White House is, too. Even Arizona is probably unwinnable for the Republicans with a number like that.
Now obviously, that is, as I said, Priebus’s worst nightmare. Things could be different. And again, I don’t think Obama should nominate Cuellar for these political reasons. But if he decided to nominate him, boy would it be great to see those people squirm.
By: Michael Tomasky, The Daily Beast, February 15, 2016
“Now That It’s 2016, New Heights Of Hypocrisy”: GOP Cynicism On The Supreme Court Reaches A New Low
A spokesman for Mitch McConnell said that the Senate should confirm judicial appointees through at least the summer. The cutoff for confirming judges in an election year, known as the ‘Thurmond Rule,’ “doesn’t need to be June, especially because we’re so far behind on the legislative calendar,” he said.
Similarly, Senator Jeff Sessions (R-AL) said, “Let me say this about the Thurmond Rule. It is a myth. It does not exist. There is no reason for stopping the confirmation of judicial nominees in the second half of a year in which there is a Presidential election.”
Even a Bush spokesperson said that the “only thing clear about the so-called ‘Thurmond Rule’ is that there is no such defined rule.”
Of course, all that was in 2008, when George W. Bush was the lame-duck president and Democrats controlled the Senate.
Now that it’s 2016, and the tables are turned, McConnell has said he’d be shocked, shocked if President Obama nominated a Supreme Court justice as late as February of his final year in office.
In fact, while there’s hypocrisy on both sides of the aisle, a review of recent history reveals more of it on the Republican side.
Let’s begin at the beginning. For 166 years, Supreme Court confirmations used to be a matter of course, with rare exceptions. In the 19th century, they usually took only a few days. The current process of Judiciary committee hearings began only in 1955, in the wake of Brown vs. Board of Education, with segregationists and other conservatives outraged at the “activist” Warren Court.
The custom of not confirming judges in a presidential election year began with the avowed segregationist Strom Thurmond, who opposed LBJ’s appointment of Abe Fortas as Chief Justice back in 1968. (Notice, by the way, the “Thurmond Rule” wasn’t even about filling a vacancy – it was about moving Fortas from Associate to Chief Justice.)
Prior to that time, Supreme Court nominations in election years were par for the course. Justice Frank Murphy was nominated in 1940, Cardozo in 1932, Clarke and Brandeis in 1916, and Pitney in 1912.
But there were many reasons for conservatives to oppose Fortas. As an associate justice, he had maintained an unusually close relationship with LBJ (allegedly, Fortas helped write one of LBJ’s State of the Union speeches). There was a minor scandal involving speaking fees. There was Fortas’s religion – it was one thing to have a “Jewish seat” on the Supreme Court, but quite another to have a Jew as Chief.
But mostly, it was ideology. Fortas was a full-fledged member of the Warren Court, extending due process rights to minors, and writing the opinion that effectively banned creationism from public schools.
The tactic worked. The Fortas appointment was withdrawn, and the position of chief justice has been held by a conservative for the last 46 years (Burger, Rehnquist, Roberts).
Since then, the “Thurmond Rule” has been understood as holding that lifetime appointments of all types should not be made in the final six months of a president’s term in office.
In practice, however, the “Thurmond Rule” could best be described as the “Sore Loser’s Rule,” since it is wielded by whichever party doesn’t hold the White House at the moment. In July, 2004, Republican Senator Orrin Hatch said there was no such thing. And Republican Senator John Cornyn threatened in 2008 that if Democrats invoked the Thurmond Rule, Republicans would go nuclear: “We could require 60 votes on every single motion, bill and procedural move before the Senate,” he said at the time.
Now, it’s the Republicans’ turn to invoke the rule, and Democrats’ turn to be outraged.
But some hypocrisy is more equal than others.
First, the Thurmond Rule has never been extended back this far. In 2008, Democrats didn’t invoke it until the late summer; Senator Dianne Feinstein said it kicks in after the first party convention. It’s February now, and even the longest Supreme Court confirmation in history – that of Justice Brandeis, in 1916 – took 125 days. (Brandeis was called a “radical” and bitterly opposed by conservatives, with antisemitism even more overt than Fortas later faced.) So this would be an unprecedented expansion of the “Rule.”
Second, the ‘Rule’ has never been applied to Supreme Court vacancies. On the contrary, when President Reagan nominated Anthony Kennedy to the court, he was confirmed 97-0 on February 3, 1988, with Senator McConnell voting in favor.
Now, in fairness, Kennedy was nominated in November, 1987, after the Bork-Ginsburg controversies had left the court with eight justices for five months – seven months counting Kennedy’s confirmation. It was arguably a special case. Moreover, Kennedy was a consensus nominee who has emerged as the swing vote over the last decade precisely because he votes equally with conservatives (as in Citizens United) and liberals (as in the same-sex marriage cases).
But if no justice were confirmed now, the vacancy would be even longer: twelve months at least.
Third, the statistics cut sharply against Republicans.
According to a detailed study by the Brookings Institute, the Senate has already slowed down the pace of judicial confirmations to record levels. In the case of Reagan, Clinton, and Bush, confirmations didn’t slow down until the second half of the presidents’ eighth year in office. In their seventh years, the Senate confirmed 23, 17, and 29 judges, respectively. In Obama’s seventh year? 10.
In other words, the two-term Republican presidents fared almost twice as well as the two-term Democrat presidents, with Obama faring the worst by far.
Moreover, the “Thurmond Rule” has rarely been applied with the orthodoxy Republicans now are claiming. An exhaustive 2008 report by the non-partisan Congressional Research Service unearthed a goldmine of historical information that belies the current majority’s claims:
In 1980, the Republican-led Senate confirmed 10 out of 13 judges nominated by President Carter in September, with Senator Thurmond himself coming under fire for trying to block some of them.
In October, 1988, the Democratic-led Senate Judiciary committee led by Joe Biden confirmed 11 out of 22 of Ronald Reagan’s judicial appointees. In October, 1992, the same committee confirmed 11 of George H.W. Bush’s.
In 2000, the Republican-led Senate confirmed 31 of President Clinton’s 56 nominations. And the 2004 Senate (narrow Republican majority, Republican president) confirmed a whopping 80% of nominees—despite claims that the Democrat minority was obstructing them.
In 2008, a Brookings Institute review found that George W. Bush’s confirmation rate was 58% for circuit court nominations, 43% for district courts—in other words, roughly the same.
In short, until this one, an opposing-party Senate has never observed the Thurmond Rule. Not in 1980, not in 1988, not in 1992, not in 2000. There are typically slowdowns in confirmations, but never a standstill. And the rule has never been invoked before the summer, let alone before the cherry blossoms bloom. Perhaps unsurprisingly, we’re in new territory this year, and at new heights of hypocrisy.
By: Jay Michaelson, The Daily Beast, February 16, 2016
“Fulfilling Their Constitutional Duties”: On SCOTUS, Pressure Falls On Endangered GOP Senators
All corners of the Republican Party have made themselves very clear: they intend to, in Donald Trump’s words, “delay, delay, delay” the confirmation of Antonin Scalia’s replacement on the Supreme Court until after the 2016 election. Ted Cruz has signaled his intention to lead a blockade, and Mitch McConnell intends to run a blockade.
All of this would be unprecedented, despite conservative protestations to the contrary. Conventional wisdom seems to suggest that McConnell can hold the Supreme Court nomination hostage for the whole year. But is that true?
It’s not necessary for the entire GOP to confirm the nominee. It only requires a few GOP Senators to join with the Democrats to fulfill their Constitutional duties. And as it turns out, there are quite a few Republican Senators in blue states who would be pilloried as intransigent obstructionists if they refused to confirm commonsense consensus nominees.
Among these Senators would be Senator Mark Kirk in Illinois, who is already Democrats’ primary target for a Senate takeover. Wisconsin’s Ron Johnson is less ideologically likely to cross the aisle, but with Russ Feingold already seeming likely to defeat him in November, it’s not clear that Johnson can afford to give Democrats yet another cudgel with which to attack him. The same goes for Senator Kelly Ayotte in New Hampshire, Pat Toomey in Pennsylvania and Rob Portman in Ohio.
President Obama will certainly nominate a number of popular, reasonable and consensus nominees, from recently confirmed Homeland Security Secretary Jeh Johnson to D.C. Circuit Court of Appeals Judge Sri Srinivasan. With each attempted and withdrawn nomination the Republican Party would look worse as a whole, but the careers of the specifically imperiled Senators would be particularly threatened–and with them the Republican Senate majority itself.
Will Ayotte, Kirk and their colleagues kowtow to McConnell and Cruz and likely eliminate their ability to hold their seats, or will they do the right thing, perform their constitutional duty and protect their Senate careers?
Time will tell.
By: David Atkins, Political Animal Blog, The Washington Monthly, February 14, 2016
Share This Blog
Unknown Feed- An error has occurred; the feed is probably down. Try again later.
mykeystrokes.com 