“Not At All What Republicans Wanted To Hear”: O’Connor Undermines GOP Talking Points On Court Vacancy
In the fight over filling the Supreme Court vacancy, Republicans clearly have the more difficult task, at least when it comes to rhetoric and public relations. The Constitution has already made clear how the process is supposed to unfold, it’s now up to GOP senators to make the case that they should ignore – indeed, they have an obligation to ignore – the constitutional model.
Republicans can’t come right out and say the truth, since “we hate the president” isn’t a compelling talking point, so they tend to frame their concerns as high-minded. As Sen. Orrin Hatch (R-Utah) put it yesterday, the partisan blockade against any court nominee is intended to protect the institution from “politicization” and “denigration.”
It’s difficult to take such an argument seriously, and it certainly doesn’t help when an actual retired Supreme Court justice seems to have no use for the right’s talking points. The Huffington Post reported yesterday:
Sandra Day O’Connor, the retired Supreme Court justice appointed by a Republican president, said on Wednesday that President Barack Obama should get to name the replacement for the late Justice Antonin Scalia.
O’Connor, in an interview with a Fox affiliate in Phoenix, disagreed with Republican arguments that the next president, and not Obama, should get to fill the high court vacancy.
O’Connor specifically said during the interview, “I think we need somebody there to do the job now and let’s get on with it.” She added, in reference to President Obama, “It’s an important position and one that we care about as a nation and as a people. And I wish the president well as he makes choices and goes down that line. It’s hard.”
That’s not at all what Republicans wanted to hear.
On the contrary, O’Connor, a Reagan appointee who retired in 2006, effectively said the opposite of what GOP senators have argued since Saturday night.
Republicans have said the seat should remain vacant for 11 months; O’Connor wants the confirmation process to begin and for a new justice to take the seat “now.” Republicans have argued that the president shouldn’t nominate anyone; O’Connor made clear the nominating choice is up to the president.
Obviously, O’Connor is now a private citizen and her opinions are her own, but she’s also a respected figure, especially on matters related to the high court. If she’d said the opposite in the interview, encouraging Obama and sitting senators to leave the seat vacant until 2017 for the good of the institution, it’s a safe bet Republicans would be citing her judgment every day for the next several months.
But she didn’t. O’Connor seems to have no use for the GOP arguments whatsoever.
By: Steve Benen, The Maddow Blog, February 18, 2016
“Democrats, Don’t Blow It”: Ask Yourselves, Whom Would You Prefer To Name Future Supreme Court Judges?
The death of Antonin Scalia has set off yet another epic partisan struggle as Senate Republicans seek to deny President Obama his constitutional right to nominate the next Supreme Court justice. They want to wait out Obama’s last year in office, hoping his successor will be one of their own.
If the Democrats choose Bernie Sanders as their presidential candidate, Republicans will almost certainly get their wish. Furthermore, the Republican president would probably have a Republican-majority Senate happy to approve his selection.
The makeup of senatorial races this November gives Democrats a decent chance of capturing a majority. Having the radical Sanders on the ballot would hurt them in swing states.
Some Sanders devotees will argue with conviction that these purplish Democrats are not real progressives anyway, not like our Bernie. Herein lies the Democrats’ problem.
No sophisticated pollster puts stock in current numbers showing Sanders doing well against possible Republican foes. The right has not subjected Sanders to the brutality it routinely rains on Hillary Clinton — precisely because he is the candidate they want to run a Republican against. Should Sanders become the nominee, the skies will open.
One may applaud Sanders’ denunciation of big money in politics, but a moderate Democrat in the White House could do something about it. A democratic socialist not in the White House cannot. Campaign finance reform would be a hard slog under any circumstances, but a seasoned politician who plays well with others could bring a reluctant few to her side.
Some younger liberals may not know the history of the disastrous 2000 election, where Republicans played the left for fools. Polls were showing Al Gore and George W. Bush neck-and-neck, particularly in the pivotal state of Florida.
Despite the stakes, prominent left-wing voices continued to back the third-party candidacy of Ralph Nader. You had Michael Moore bouncing on stages where he urged cheering liberals to vote for the radical Nader because there was no difference between Gore and Bush. Republicans, meanwhile, were running ads for Nader. That was no secret. It was in the papers.
When the Florida tally came in, Bush held a mere 537-vote edge. The close results prompted Florida to start a recount of the votes. Then, in a purely partisan play, the conservative majority on the Supreme Court stopped the recount, handing the election to Bush.
The bigger point is that Gore would have been the undisputed winner in 2000 had Nader not vacuumed up almost 100,000 Florida votes, most of which would have surely gone to him.
Same deal in New Hampshire, where Nader siphoned off more than 22,000 votes. Bush won there by only 7,211 ballots.
Now, Sanders is an honorable man running a straightforward campaign for the Democratic nomination. One can’t imagine his playing the third-party spoiler.
But what makes today similar to 2000 is how many on the left are so demanding of ideological purity that they’d blow the opportunity to keep the White House in Democratic hands. Of course, they don’t see it that way. This may reflect their closed circle of like-minded friends — or an illusion that others need only see the light, and their hero will sweep into the Oval Office.
The other similarity to 2000 is the scorn the believers heap on the experienced liberal alternative. They can’t accept the compromises, contradictions and occasional bad calls that attach to any politician who’s fought in the trenches.
The next president will almost certainly be either Clinton or a Republican. Democrats must ask themselves: Whom would you prefer to name future Supreme Court judges?
By: Froma Harrop, The National Memo, February 16, 2016
“Nothing Or Nothing At All”: Trump Or Cruz, It Sucks To Be A Republican Senator
If, as seems reasonable, Greg Sargent is correct that the spectacle of Senate hearings on an Obama-nominated Supreme Court Justice will empower hardliners Donald Trump and Ted Cruz, the Republican Establishment has a powerful incentive not to allow them.
At this point, though, we’re almost to the point where the Establishment should just give up on the prospect of having anyone other than Trump or Cruz as their nominee. We’ll soon know more when we get the results from South Carolina’s primary, but right now it looks very likely that Trump will win there, possibly in a walk, and that Cruz will come in second place. Among the also-rans, only Marco Rubio seems to be showing any life. And, after watching him get eviscerated by Chris Christie in New Hampshire, do the Republicans really want to hitch their wagon to the remote hope that Rubio will surge to win the nomination and then prove a match for the Democrats’ candidate?
Part of the problem with this whole plan to reject any Obama Supreme Court selection is that the Republicans are looking so unlikely to get their act together in time to win in the fall.
We can debate where this whole subject falls on the damned-if-you-do-damned-if-you-don’t scale, but I’m not convinced it helps the Republicans’ cause in November to simply refuse to consider any nominee by declining to give them the courtesy of a hearing and a vote. The logic of it is that the Republican base will be so dejected if partisan control of the Court is lost before the election that they won’t turn out. If, on the other hand, they think control hangs in the balance, they will turn out in droves. They won’t turn out to vote for a nominee they might hate or distrust, but they’ll turn out to keep the Court from flipping to a liberal majority.
That makes a lot of sense, and I’m sure that they would experience different turnout numbers depending on which road they take. But base mobilization is more of a midterm strategy than a general election strategy. The Republicans have only succeeded in winning the popular vote once in the last twenty-eight years (in 2004), and they barely won the Electoral College that year. They need to change the shape of the electorate in their favor, because their base just isn’t big enough.
And, consider, since 2012 they’ve definitely done damage with their prospects with Latino and Asian voters. They’ve further alienated the academic/scientific/technical/professional class with their anti-science lunacy. They’ve lost the youth vote over a variety of issues, including hostility to gay rights. They’re doing everything they can to maximize the black vote. Muslims will vote almost uniformly against them despite sharing some of their ‘family values.’ Women won’t be impressed if Cruz or Rubio are the nominees because they both oppose abortion including in cases of rape or incest. They’ll be unimpressed with Donald Trump because he’s a sexist, womanizing boor. I don’t think any of these groups will be more favorably inclined to the Republicans if they block Obama’s nominee without a hearing.
Realistically, as this point they almost have to go with Trump because his fame and lack of orthodoxy will change the shape of the electorate. It’s not likely to change it favorably, and many life-long Republicans will bolt the party, perhaps never to come back. But it will change it.
Unless John Kasich catches fire there’s no hope of the GOP rebranding in a way that will undo the massive amount of damage they’ve done with the persuadable middle. Jeb would present a softer face to the party, but there’s no way a Bush is winning the general election in 2016.
The way I see it, the best deal the Republicans are going to get is right now. Obama will compromise with them. He might pick a relatively moderate Justice if he has assurances that they’ll be confirmed. People have mentioned Nevada Governor Brian Sandoval, for example, who is a pro-choice Republican. He might pick someone older, like George Mitchell. He might pick a colleague of theirs. I think Sen. Amy Klobuchar of Minnesota is his best option. The Republican senators like her and she’s no radical.
But, if they lose the general election, which the wise among them must know is becoming almost a certainty, they’ll also lose a bunch of Senate seats. They’ll be in a much weaker position to block Clinton or Sanders’s nominee or (if necessary) nominees. And they’ll probably have to deal with a nominee who is further to the left and much younger.
Why not use their considerable power now to get some real concessions rather than roll the dice on Donald Trump or Ted Cruz being our next president?
And, as Greg Sargent points out, who knows who Trump would nominate? He was pro-choice until he decided he needed to pretend otherwise if he wanted to win the Republican nomination. Why trust him?
So, it’s really down to Ted Cruz.
Cruz or nothing.
That’s how they want to go.
Except they universally loathe Ted Cruz with the heat of a thousand supernovas.
It sucks to be a Republican senator.
By: Martin Longman, Political Animal Blog, The Washington Monthly, February 18, 2016
“It’s A Question Of Legitimacy”: Both Democrats And The Media Need To Be Clear About What Is Happening
It was only an hour after reports had confirmed that Supreme Court Justice Antonin Scalia was dead that Mitch McConnell declared “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.” Of course that statement completely ignores the fact that almost 66 million people had used their voice to elect President Barack Obama to a four year term back in 2012. But it wasn’t long before people like Sen. Grassley – chair of the Senate Judiciary Committee – and all of the Republican presidential candidates weighed in to agree with McConnell.
As I watched all this unfold on Saturday night, this is the tweet that captured it for me:
Republicans rejected the President’s constitutional right to fill a Supreme Court vacancy before he’s named a nominee. Think about that.
— Jon Favreau (@jonfavs) February 13, 2016
The word “before” is carrying a lot of weight in that statement. It wasn’t long before much of the media had bought the underlying premise. Notice the word “technically.”
“He still will be technically the pres. of the US for another 11 months.” – CNN. Technically?
— John Aravosis (@aravosis) February 14, 2016
What this means is that Republicans are not even going to wait and question President Obama’s nominee on the merits. They are directly challenging his legitimacy to nominate anyone. That goes to the heart of a case they have been making for seven years now (starting with the whole “birther movement”). It is what Doug Muder referred to as the Confederate worldview.
The essence of the Confederate worldview is that the democratic process cannot legitimately change the established social order, and so all forms of legal and illegal resistance are justified when it tries…
The Confederate sees a divinely ordained way things are supposed to be, and defends it at all costs. No process, no matter how orderly or democratic, can justify fundamental change.
It is also reminiscent of Grover Norquist’s response back in 2003 when talking about how the GOP would handle a Democratic presidency in the “permanent Republican majority.” He said, “We will make it so that a Democrat cannot govern as a Democrat.”
That is what we are seeing played out right now with respect to a nomination to the Supreme Court. Republicans are questioning the very legitimacy of our current President to perform his Constitutional duties. That’s because the social order is changing (both in terms of cultural issues and demographics) and, for them, any form of resistance is justified.
Both Democrats and the media need to be clear about what is happening. Regardless of how often Republicans try to don the mantle of defending the Constitution, they are in the midst of attempting to undermine our democratic processes.
By: Nancy LeTourneau, Political Animal Blog, The Washington Monthly, February 15, 2016
“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
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