“The Supreme Court Fight Is About Democracy”: Conservatives Want To Bring Back Pre-New Deal Jurisprudence
There’s a reason beyond garden-variety partisanship that Senate Republicans resist even holding hearings on President Obama’s nomination of Merrick Garland to the Supreme Court. Their gambit evades a full and open debate over the conservative judicial agenda, which is to use the high court in an aggressive and political way to reverse decades of progressive legislation.
The central irony here: The very conservatives who use “judicial activism” as a battering ram against liberals are now the aggressive judicial activists. It’s precisely because Garland’s record reveals him to be a devout practitioner of judicial restraint that an intellectually frank dialogue over his nomination would be so dangerous to the right. It would expose the radicalism of their jurisprudence.
Some conservatives are quite open about this, and few have been more candid than George F. Will, my Post colleague. To begin with, he deserves credit for making clear in his most recent column that Garland really is a stout advocate of judicial “deference” and for pointing out the absurdity of the Republicans’ refusal to take up his nomination. And in the past, Will has been unusually direct in defining the stakes in our battles over the role of the courts.
In a 2014 column aptly headlined “Judicial activism isn’t a bad thing,” he wrote: “Conservatives clamoring for judicial restraint, meaning deference to legislatures, are waving a banner unfurled a century ago by progressives eager to emancipate government, freeing it to pursue whatever collective endeavors it fancies, sacrificing individual rights to a spurious majoritarian ethic.”
Will’s attack on “a spurious majoritarian ethic,” of course, is another way of criticizing the workings of democracy. Where does this lead?
It leads to the Citizens United decision (which Will supports as emphatically as I oppose it) that overthrew decades of precedent and a century of practice involving limits on the power of big money in politics; to the Supreme Court’s evisceration of the Voting Rights Act; and to the scrapping of all manner of legislation aimed at protecting workers’ rights, the environment and consumers. Historically, it’s an approach that, more often than not, leans toward employers over employees, creditors over debtors, property owners over less affluent citizens, and corporations over individuals.
We know what this approach looks like because it’s the one the court pursued for decades before the New Deal. It is this pre-New Deal jurisprudence that conservatives want to bring back. Some conservatives have talked openly about the “Constitution in Exile,” referring to the way our founding document was once read to overturn many New Deal and Progressive Era laws. Starting in the late 1930s, the court moved to a different approach that gave Congress broad latitude to legislate on matters related to social justice and economics and saw its task as intervening primarily on behalf of individual rights.
Will’s outright embrace of “judicial activism” has brought him some critics on the right. One of them is Ed Whelan, president of the Ethics and Public Policy Center and a leading defender of the Senate Republicans’ current strategy. “Most contemporary conservative proponents of judicial restraint,” Whelan has written, “are also proponents of originalism and see judicial restraint merely as supplementing originalist methodology when that methodology fails to yield a sufficiently clear answer to a constitutional question.”
Whelan added that his approach would, like Will’s, allow judges to “enforce the rights, and limits on power, that the Constitution, fairly construed, sets forth.” But it would also “prevent judges from inventing rights and powers that are not in the Constitution.”
Here’s my translation of Whelan: He’s instructing Will to notice how originalism — the conservative theory that insists we can apply the original meaning of the Constitution’s words and the Founders’ intentions with some ease — leaves judges with plenty of power to toss out progressive laws. At the same time, it gives conservatives grounds to oppose liberals on such issues as abortion and gay marriage.
I’ll stipulate that there are some legitimate conservative arguments against liberals on their own forms of social-issue activism. But I’d insist that we will understand this court battle better if we pay attention to Will’s straightforward language: Through originalism and other doctrines, conservatives have embraced an astonishingly aggressive approach to judging. It allows them to reach outcomes through the courts that they cannot achieve through the democratic process.
At heart, this is a debate over how we define democracy. It’s also a struggle over whether government will be able to serve as a countervailing force to concentrated economic power.
By: E. J. Dionne, Jr., Opinion Writer, The Washington Post, March 20, 2016
“The Best Of Their Options”: Why Republicans Might Actually Put Merrick Garland On The Supreme Court
Today President Obama announced that Merrick Garland is his nominee to fill the seat of the late Antonin Scalia on the Supreme Court. This pick is something of a surprise, given Garland’s reputation as a moderate, and most importantly, his age — Garland is 63, meaning he would likely spend only 10 or 15 years on the Court if he is confirmed.
Of course, he may not be confirmed, since Republicans have made clear that they will refuse to hold hearings or votes on any nominee Obama offers, and have said they’ll even refuse to meet the the nominee. Mitch McConnell reiterated that again today. So there’s a clear political strategy behind this nomination on the White House’s part.
But there’s also a way in which Garland could end up actually making it to the Court — not because the White House managed to outmaneuver Republicans, but because they decided that confirming him was the best of their options.
First, let’s look at the White House’s thinking. Of course they’re going to say that this decision was made purely on Garland’s merits, and politics never entered in to it, that Garland was picked because he’s eminently qualified, and he’s well-respected by both Democrats and Republicans. Garland may have all the admirable qualities Obama spoke of today, but it’s also true that he is the hardest pick for Republicans to oppose. He’s probably the most moderate of the names that were mentioned, and when you combine that with his age (and the fact that he’s a white man), Republicans won’t be able to say that Obama is trying to appoint some radical leftist who will pull the Court far to the left for the next 30 or 40 years.
That means that Garland is the one whose appointment most clearly portrays Republicans as obstructionists when they refuse to consider him. That will not only help Hillary Clinton when she argues that Republicans are unreasonable and irresponsible, but it will also put some vulnerable Senate Republicans in uncomfortable positions, particularly Chuck Grassley of Iowa, Mark Kirk of Illinois, Kelly Ayotte of New Hampshire, and Pat Toomey of Pennsylvania, all of whom face tough challenges in the fall. So while it may not have a transformative effect on the election, Garland’s nomination could, at least by a bit, increase the chances both that Clinton is elected president and that Democrats will be able to take back the Senate.
The White House is also probably assuming that Republicans will oppose Garland, as they’ve promised. Garland has already had a full career and this is doubtless his last opportunity to ascend to the Supreme Court, so he may have been more willing than other potential nominees to go through this process, with the small chance that he will actually be confirmed.
But might he actually be confirmed? The answer is yes. Here’s how it might happen:
1. Hillary Clinton wins in November. Given that Donald Trump looks like he will be the nominee of the Republican Party, this looks like a strong possibility.
2. Democrats take back the Senate. Democrats need a net gain of four seats in order to get to 50, which was about an even bet before; with Trump leading the Republicans, that looks even more likely.
3. Democratic Senate leaders consider eliminating the filibuster for Supreme Court nominations. If Clinton were to win, Republicans could decide that they can live with an eight-member Supreme Court for four years, and simply refuse to confirm any Clinton nominee. If they do that, and if Democrats gain a majority, the Democrats would almost certainly get fed up enough to just take the final step and eliminate the filibuster for those nominations (they already eliminated filibusters for lower-court nominations in 2013). Indeed, they’re already considering it.
4. Republicans return after the election and confirm Garland. If Clinton wins and Democrats take the Senate, Republicans will face a choice between Garland and whoever Clinton would nominate — and that person would probably be more liberal, and far younger. So Garland, a moderate who might only spend 10 or 15 years on the Court, would suddenly look like easily the best option. So before the next Senate takes office in January, Republicans would quickly confirm Garland and cut their losses.
Liberals are reacting with a decided lack of enthusiasm over Garland’s nomination, both because of his moderation and his age. For them, the best of all scenarios is that Garland’s nomination flounders, Hillary Clinton gets elected, and appoints a younger and more liberal justice. They might get their wish — if Republicans don’t figure out what’s most in their interests first.
By: Paul Waldman, Senior Writer, The American Prospect; Contributor, The Plum Line Blog, The Washington Post, March 16, 2016
“Shredding Their Own Talking Points”: Senate Republicans Turn Their Principles Into A Punch Line
Before President Obama even introduced Merrick Garland as his Supreme Court nominee, Senate Republicans said they had little choice but to impose an impenetrable blockade. Their “principles,” GOP senators said, made any other course of action impossible.
First, for example, Republicans said their principles required them to honor the “tradition that both parties have lived by for over 80 years” about high-court vacancies that occur during a president’s eighth year. Soon after, Republicans sheepishly acknowledged that “tradition” doesn’t exist.
Republicans then said their principles about the Supreme Court have nothing do to with partisanship. Soon after, they quietly conceded that if a GOP president were in office, the blockade wouldn’t exist.
Republicans then said their opposition to Garland’s nomination has nothing to do with Garland specifically or his qualifications, but rather, the party’s principles about election-year confirmation votes. Soon after, the Republican National Committee released an oppo dump on Garland – a judge Republicans and conservatives have praised for years – which pointed in the opposite direction of their purported principles.
And finally, Republicans said their principles require them to keep this vacancy in place so that “the next president” can fill it, Garland’s merits notwithstanding. Except, many GOP senators have decided not to take this principle seriously, either.
Sen. Orrin Hatch on Thursday blasted the notion that the Senate would consider the Supreme Court nomination of Merrick Garland before November – but suggested he would be open to confirming him if Hillary Clinton wins the general election and doesn’t announce her own choice. […]
Hatch remarked that it is possible that Garland could undergo a confirmation process during the lame-duck session following the Nov. 8 election, but that is largely contingent upon who the next president would be.
You’ve got to be kidding me.
I honestly can’t remember the last time Republicans went so far to shred their own talking points in public. According to Orrin Hatch, the GOP’s blockade against Garland has nothing to do with partisanship or even the judge’s nomination on the merits, but rather, this is solely about principle.
Unless, of course, Hillary Clinton wins the presidential election, at which point the GOP will gladly throw their principles out the window. Hatch isn’t the only one, either.
We’re talking about elected senators who aren’t even trying to work in good faith. Some of these Republicans seem quite comfortable appearing nakedly partisan, abandoning any sense of propriety or responsibility, as if they simply don’t care whether or not they appear ridiculous.
In fairness, there are some exceptions. Sen. Lindsey Graham (R-S.C.) conceded yesterday, “We can’t have it both ways.” Sen. David Perdue (R-Ga.), a fellow member of the Judiciary Committee, agreed and said he intended to stick to the underlying principle.
But these positions are not guiding Republican tactics, at least not right now. The GOP game plan is as follows:
1.Impose an eight-month blockade on the Garland nomination, unlike anything ever seen in American history, including a prohibition on floor votes and confirmation hearings.
2.Wait for the election results in November.
3.If a Republican wins the presidency, do nothing.
4.If Hillary Clinton wins, revisit the blockade and consider confirming Garland during the lame-duck session between Election Day and the start of the new Congress in 2017.
The benefit to Republicans would be obvious: they’d confirm a 63-year-old moderate, rather than let Clinton nominate someone younger and more liberal. At that point, GOP senators appear craven and unprincipled, but by all appearances, Republicans just don’t care.
And while GOP senators may not be concerned about their reputations or their ability to take pride in their public service, they should be concerned with the details of the nominating process: if Clinton wins and Republicans decide to move forward on Garland, President Obama could always withdraw the nomination during the lame-duck session and empower his Democratic successor to start the process anew in the new year.
If Republicans aren’t prepared to take their own principles seriously, no one else will, either.
By: Steve Benen, The Maddow Blog, March 17, 2016
“Outsourcing Constitutional Responsibilities”: Senate Republicans Will Ignore Court Nominee, But RNC Won’t
Any day now, President Obama is expected to announce his nominee to fill the vacancy on the Supreme Court, and the political battle lines have already been drawn. On Capitol Hill, Senate Republicans remain committed to a partisan blockade, unlike anything ever seen in American history, that calls for the rejection of any presidential nominee, regardless of qualifications or merit.
But while the Senate’s Republican majority intends to ignore the White House’s choice, the Republican National Committee intends to do the opposite. The Associated Press reported this morning:
The Republican Party is launching a campaign to try to derail President Barack Obama’s nominee to the Supreme Court, teaming up with a conservative opposition research group to target vulnerable Democrats and impugn whomever Obama picks.
A task force housed within the Republican National Committee will orchestrate attack ads, petitions and media outreach…. The RNC will contract with America Rising Squared, an outside group targeting Democrats that’s run by a longtime aide to GOP Sen. John McCain.
RNC Chairman Reince Priebus said his attack operation would “make sure Democrats have to answer to the American people for why they don’t want voters to have a say in this process.” Priebus added that the White House is poised to “break with decades of precedent.”
Republicans, the RNC chair went on to say, are “going to vet that person and put their real record on display.”
At face value, most of the RNC’s rhetoric is plainly laughable. Obviously, no one is trying to deny voters a role in the process – voters are the ones who elected President Obama (twice), giving him the authority to act. It’s equally obvious that the “decades of precedent” talking point is brazenly untrue, as even some Senate Republicans have been willing to acknowledge.
But just below the surface, there’s something even more ridiculous going on.
For example, the RNC is going to have a tough time pitching their opposition to the unnamed nominee as sincere and principled if the party launches its partisan war against him or her before knowing who the nominee is. There’s an important difference between, “This is a horrible choice,” and “We have no idea who the choice will be, but we’re sure it’ll be horrible.”
It’s the sort of posture that leads more to eye-rolling than meaningful debate.
Perhaps more importantly, the Washington Post’s Greg Sargent raised an overlooked detail.
Ideally, of course, [the vetting of the nominee] is what would happen if the Senate were to hold hearings on that person. But that might afford the nominee a chance to directly respond to his or her Republican cross-examiners in a high profile setting (as opposed to only having Democratic groups mounting all the pushback, which of course they will also do, once there is a nominee). Direct exchanges between the nominee and Republican Senators, alas, might reflect well on that person. And so the only “vetting” and examination of the nominee’s “real record” will be undertaken through the RNC and associated GOP-aligned groups.
That’s not meant as sarcasm. It’s the actual Republican party-wide position right now.
Quite right. Under the American political process, the Senate is supposed to oversee the formal vetting of a Supreme Court nominee. In 2016, however, Senate Republicans don’t want to – so they’re outsourcing the vetting to the Republican National Committee.
What should be done by senators and officials – people who are ultimately accountable to the public – will instead be done by partisan operatives.
There is no precedent for anything like this in the American tradition. Senate Republicans and the RNC evidently don’t care.
By: Steve Benen, The Maddow Blog, March 14, 2016
“A Meaningful Deterrent”: Senate Republicans Rediscover The Value Of ‘Pinata Politics’
Almost exactly 10 years ago, Sen. John Cornyn (R-Texas) was concerned about Supreme Court nominee Samuel Alito facing “attacks” from Senate Democrats. Eventually, the Texas Republican said at the time, senators “will need to come to terms with our confirmation process.” Cornyn added that treating nominees “more like pinatas than human beings” is “something none of us should be willing to tolerate.”
That was when there was a Republican president in the White House. Now that President Obama is the one doing the nominating, Cornyn is apparently less concerned about Pinata Politics.
Even though Senate Republicans have no intention of holding hearings on President Barack Obama’s Supreme Court nominee, that doesn’t mean he or she won’t be dragged through the mud.
And the chamber’s No. 2 Republican made that clear to a small cluster of reporters Monday, saying he believed the nominee, “will bear some resemblance to a pinata.”
A decade ago, Cornyn characterized this as “something none of us should be willing to tolerate,” but this year, one gets the impression that the Senate Majority Whip not only tolerates the same practices he denounced, he also intends to be one of the lawmakers holding the stick, swinging for candy.
White House Press Secretary Josh Earnest was unimpressed with the rhetoric. “Senator Cornyn has now taken the next step and suggested – without knowing who this nominee is, without considering what their record is, what their experience is, how qualified they are for the job – he is suggesting that they’ll be subjected to bashing by Republicans,” Earnest told reporters yesterday. “It’s unclear for what reason, other than the president of the United States has chosen to fulfill his constitutional responsibility to nominate someone to fill a vacancy.”
That said, if Cornyn and the GOP’s tolerance for Pinata Politics is intended to intimidate potential nominees – “It’s a nice career you have there, it’d be a shame if we had to beat you with a stick” – it might be working.
Nevada Gov. Brian Sandoval’s (R) was floated as a possible choice for the Supreme Court, though he soon after withdrew his name from consideration. Yesterday, as MSNBC reported, a high-profile member of the president’s cabinet did the same thing.
U.S. Attorney General Loretta Lynch has “asked not to be considered” for nomination to the Supreme Court to take the spot formerly occupied by the late Justice Antonin Scalia, the Justice Department said Tuesday.
Today, The Hill reported that another possible contender also bowed out.
Federal Appellate Judge Adalberto Jordan has taken himself out of consideration to become President Obama’s Supreme Court nominee, CNN reported Wednesday.
The Miami-based judge was reportedly a contender to fill the vacancy left by the death of Justice Antonin Scalia and would have been the first Cuban-American to sit on the high court.
Of course, people may have all kinds of reasons to withdraw from consideration, but it’s easy to imagine Republican rhetoric about pinatas serving as a meaningful deterrent.
By: Steve Benen, The Maddow Blog, March 9, 2016
Share This Blog
Unknown Feed- An error has occurred; the feed is probably down. Try again later.
mykeystrokes.com 