“Arguments Both Indefensible And Dishonest”: Senate Republicans Debunk Their Own Supreme Court Talking Points
Senate Republicans have had about a month to come up with a coherent rationale for imposing a blockade on any Supreme Court nominee from President Obama. The fact that they’ve failed so spectacularly to think of anything sound is probably a bad sign.
But the fact that they’re starting to debunk their own talking points is far worse.
A couple of weeks ago, for example, a wide variety of Republicans repeated this line about the merits of a partisan blockade: “This is a tradition that both parties have lived by for over 80 years where in the last year, if there was a vacancy in the last year of a lame duck president, you don’t move forward.”
Today, another Republican senator – who actually supports his party’s strategy – acknowledged that his party’s argument was a lie. The Huffington Post noted:
One of the Republican Party’s most candid senators, Lindsey Graham (S.C.), admitted Thursday a stark fact that the rest of his colleagues have tried their best to avoid: that their blockade of any Supreme Court nominee by President Barack Obama is unprecedented.
And he insisted that he was going to go along with it, even though he predicted it would worsen relations between the parties and the functioning of the Senate.
Graham conceded, “We are setting a precedent here today,” even after weeks of GOP rhetoric about how they’re just following an existing precedent. The South Carolina Republican added that his party’s current gambit would establish a “new rule” – effectively admitting that such a rule is not currently in place.
The comments were held during a Judiciary Committee discussion about why the Judiciary Committee will refuse to have a discussion about the Supreme Court nomination that does not currently exist.
Graham’s unexpected concession made his party’s arguments look both indefensible and dishonest, but Sen. Ron Johnson (R-Wis.) went even further in discrediting his own party’s claims. TPM reported:
During a Thursday morning radio interview, Sen. Ron Johnson (R-WI) candidly explained that Senate Republicans would take a different approach to a Supreme Court nominee if a Republican president were in office and replacing a conservative justice.
Johnson was asked on Wisconsin radio show “Morning Mess” about Senate Republicans’ refusal to consider President Obama’s forthcoming nomination to the Supreme Court. The host hypothesized that things would be different if Mitt Romney were in the White House.
The far-right Wisconsin senator, up for re-election this year, said it would be “different” if a Republican president were currently in office. As Johnson put it, “Generally, and this is the way it works out politically, if you’re replacing – if a conservative president’s replacing a conservative justice, there’s a little more accommodation to it.”
He added, “But when you’re talking about a conservative justice now being replaced by a liberal president who would literally flip the court – you know, let’s face it, I don’t think anybody’s under any illusion – President Obama’s nominee would flip the court from a 5-4 conservative to a 5-4 liberal controlled court…. And so it’s an incredibly serious moment in terms of what’s the composition of the court going to be.”
In other words, as far as Johnson’s concerned, pleasant-sounding rhetoric about principles and Senate norms and traditions is all just window dressing. President Obama is a Democrat, and since Antonin Scalia was a conservative, Ron Johnson believes the constitutional process should be ignored for the most brazenly partisan reasons.
I’m honestly not sure if Senate Republicans are even trying anymore. They made up a “Schumer Rule,” which turned out not to make any sense. They made up a “Biden Rule,” which proved the opposite of the GOP’s intended point. They pointed to a “Thurmond Rule,” which kind of exists, but doesn’t apply here. Republicans made up an 80-year “tradition” out of whole cloth, which Lindsey Graham now concedes doesn’t exist.
They blamed the blockade on the “nuclear option,” which was ridiculously dishonest. They said this is payback for Robert Bork, which made even less sense.
And now a prominent Senate Republican is admitting publicly that the party’s professed principles are irrelevant and the party would be acting differently if the president weren’t a Democrat.
Why not simply drop the pretense and admit that the party is being craven?
By: Steve Benen, The Maddow Blog, March 10, 2016
“The House That Scalia Built”: The Bitter Beginning Of The 21st Century That Scalia And The Bush Dynasty Gave Us
Two waves broke this week: a pair of deaths on our national shore that changed everything. They are inseparable in the annals of our time. Goodbye to all that a Supreme Court Justice wrought, and the House of Bush brought.
If only it were that simple.
Supreme Court Justice Antonin Scalia is dead at 79, the Dickensian, most opinionated character on the bench. Friends — many of whom knew him as an operagoer, a city denizen, and an avid socializer — called the father of nine children Nino. His burial is Saturday.
The “master of invective,” as one put it, Scalia was considered brilliant, and was often callous in withering dissents on, for example, gay marriage. Taking a dim view of President Obama’s lead in the delicate Paris Agreement on climate change, his last vote was to immobilize the emissions standards. How nice of five Republican men to disrespect the Democratic president in the world’s eyes. As it happens, the Folger Shakespeare Library is staging “A Midsummer Night’s Dream” — fitting, considering Titania’s haunting lines that warn of global warming.
Nobody on the creamy marble Court was more polarizing since the Civil War. The unabashed carrier of the conservative cross, Scalia seldom let up on his pounding force and lashings, even in victory.
On “60 Minutes,” Scalia scolded half the American people, saying: “Get over it!” He referred to the infamous 2000 Supreme Court decision that swung the presidency from Al Gore to George W. Bush by one vote. He had a chance to be civil; he didn’t take it.
Meanwhile, the Bush dynasty hangs onto its last breath with Jeb Bush’s floundering presidential campaign. His brother, former President George W. Bush, left Texas to campaign, but the magic was missing. The 43rd president looked aged. Jeb has a penchant for saying their father, Bush senior, is the “greatest man alive,” or some such.
Here’s the double knell: The House of Bush is the House that Scalia built. At least, he was an architect. Now a tragic link ties those names together.
Their historical cadence will join other follies. “Sophocles long ago/Heard it on the Aegean,” English poet Matthew Arnold wrote in “Dover Beach.” Now I know what Arnold meant when he saw an elegiac sadness in ages and armies.
All we need to do is go back to 2000 — when our known world ended — when five Republican Supreme Court justices gave new meaning to “one man, one vote.” The deciding votes were out of the citizens’ hands; nine officials voted 5-to-4 — freezing a close vote count in Florida to determine the true winner. They shut democracy down.
That rude decision changed the course of the 21st century. George W. Bush swerved into war in Iraq, giving rise to ISIS today. Remind me: What were we fighting for? Following the Sept. 11 terrorist attacks, were the pretext to war, when 19 men (15 Saudis) were hijackers in a clever plot. The unprepared U.S. Army and the American viceroy, Paul Bremer, destroyed civil society in Iraq. What a mess.
The Court outrage for the ages must not be forgot in Scalia’s dramatic death, political to the end. The decision is full of rich contradictions. Scalia, who often mocked “nine unelected lawyers” in democracy, sprang into action by stopping vote counting in Florida. The governor of Florida then was Jeb Bush. In unseemly partisanship, Scalia departed from his so-called “originalist doctrine” to strongly urge the Court to stop counting. He also abandoned his emphasis on states having a say in governance by shortchanging the Florida Supreme Court. Hs loyal colleague, Clarence Thomas, followed him every step — Thomas who was nominated by President George H.W. Bush in 1991.
Justice Scalia died on a West Texas luxury ranch during a hunting trip. His death was apt, given his pugilistic style in upholding gun rights and every conservative cause in creation. Washington can’t get over that he’s gone, friends and foes alike. The senior sitting justice loomed large as the fiercest player, in every word he spoke and wrote. The vacancy gives President Obama one more try to work his will on a hostile Senate.
It will take time for the country to heal from the bitter beginning of the 21st century that Scalia and the Bush dynasty gave us. And for the record, I will never get over it.
By: Jamie Stiehm, The National Memo, February 19, 2016
“Conservatives Are Right To Be Frightened”: Don’t Believe The Hype: Here’s What A Liberal Supreme Court Would Actually Do
If you look at how the Democratic and Republican candidates for president have reacted to the Supreme Court vacancy created by the death of Antonin Scalia, you might notice a greater sense of urgency from the Republicans. The Democrats are certainly talking about it, and they’ve certainly expressed their contempt at the absurd arguments Republicans are making in support of their position that the president of the United States shouldn’t be allowed to appoint Supreme Court justices if a new president will take office in a year. But they aren’t spinning out nightmare scenarios about what will happen if they lose this conflict. The Republicans, on the other hand, seem much more worried.
And they’re right to be, because at the moment, they have more to lose. But what would actually happen if the balance on the Court shifts from 5-4 in favor of conservatives (what it was before Scalia’s death) to 5-4 in favor of liberals?
To hear Republicans tell it, the results would be positively apocalyptic. Here’s how Ted Cruz described it in a CNN town hall last night:
“We are one liberal justice away from the Supreme Court striking down every restriction on abortion that’s been put in place the last 40 years. We are one liberal justice away from the Supreme Court writing the Second Amendment out of the Constitution. We are one liberal justice away from the Supreme Court ordering Ten Commandments monuments to be torn down, ordering veterans memorials to be torn down, and undermining our fundamental religious liberty.”
This is almost verbatim what Cruz has been saying since Scalia died; on Meet the Press last Sunday, he added colorfully that a liberal majority would mean “the crosses and Stars of David sandblasted off of the tombstones of our fallen veterans.”
There’s no doubt that if and when a new liberal justice takes his or her seat on the Court — either because Obama’s nominee somehow gets confirmed or because Hillary Clinton or Bernie Sanders wins the election and appoints one — it will be the most significant shift in the Court’s balance in decades. And that’s in large part because the right has gotten so much of what it wanted out of this Supreme Court. While conservatives shake their fists at the Court and call John Roberts a traitor, the truth is that with just a few exceptions, most notably the legalizing of same-sex marriage and the upholding of (most of) the Affordable Care Act, the Roberts Court has delivered the right a spectacular string of victories over the last few years. Among other things, they found an individual right to own guns for the first time in history, knocked down limits on spending by corporations (and unions) on political campaigns, whittled away at affirmative action, gutted the Voting Rights Act, made it harder for employees to sue for sex discrimination, and declared that corporations have religious rights.
Nevertheless, according to the Pew Research Center, in 2008, 80 percent of Republicans had a favorable view of the Supreme Court. By 2015 that figure had fallen to 33 percent. And 68 percent of conservative Republicans described the Court as “liberal,” which is laughable by any standard one could devise.
So what happens now? Margo Schlanger compiled this list of major rulings where Scalia was in a 5-4 majority, all of which could in theory be overturned, from Citizens United to D.C. v. Heller (which established the individual right to own guns) to Shelby County v. Holder (which invalidated key parts of the Voting Rights Act). But that doesn’t mean a liberal majority would go on a rampage, overturning all those settled cases.
“The Supreme Court is a conservative institution as a whole; justices aren’t looking to overturn the apple cart,” Jill Dash of the liberal American Constitution Society told me this morning. She argued that it’s unlikely that a liberal majority would set about to repeal those high-profile decisions, particularly within the first few years of that majority.
Samuel Bagenstos, a professor at the University of Michigan law school who served in the Justice Department under President Obama, also doubts that there would be too many major decisions overturned. “The four more liberal justices currently on the Court take precedent and stare decisis seriously, and I don’t think that will change,” he said.
But there would be change in complex areas of law where the courts are still working through how previous decisions apply to varied situations. Affirmative action is one “where the Court would be much more likely to uphold programs designed to promote diversity in schools and the workplace,” Bagenstos says. He also points to employment law as an area where a liberal majority could chart a new path, in cases concerning arbitration clauses in contracts and what constitutes systemic discrimination. Dash notes that a liberal majority would probably produce a spate of voting rights cases, as challenges to restrictions imposed by Republican state legislatures would find a friendlier hearing, even if Shelby County isn’t entirely overturned.
And then there’s abortion, always at the top of everyone’s mind when the Supreme Court comes up. In recent years, conservative states have pushed the envelope farther and farther in restricting the availability of abortion, with onerous rules on abortion clinics and invasive mandates on the women seeking the procedure. The question is which of these measures violate the Court’s 1992 ruling in Planned Parenthood v. Casey, which stated that the government can’t impose an “undue burden” on a woman’s right to choose.
The conservative position to this point has been that virtually no burden is “undue.” If the state makes you drive hundreds of miles, wait for days, make multiple visits to a clinic, hear an oration of lies penned by some GOP state legislator about how getting an abortion might give you cancer and drive you mad, so far the Supreme Court has said it’s just what women should have to tolerate.
But that might no longer be true. “A liberal who replaced Justice Scalia would likely read the Casey ‘undue burden’ standard as imposing a much more significant limitation on the regulation of abortion than the Court has in recent years,” says Bagenstos, “so you could see a major practical shift in reproductive rights jurisprudence. I don’t think the Court would overrule any precedent, though. It would just find a wider range of burdens to be ‘undue.’”
In short, a liberal replacing Scalia would be an important change with profound consequences for all Americans’ lives. But it wouldn’t happen all at once, and it wouldn’t be so earth-shattering as to cause riots in the streets. Nobody’s going to sandblast the crosses off the gravestones at Arlington. Nevertheless, conservatives are right to be frightened. They’ve had a long run with conservative dominance of the Supreme Court, and it may be coming to an end. Now they’ll understand how liberals have felt for the last few decades.
By: Paul Waldman, Senior Writer, The American Prospect; Contributor, The Plum Line Blog, The Washington Post, February 18, 2016
“Meekly Accepting GOP’s Extreme Premise”: As Obama Moves To Replace Scalia, The Press Enables Radical GOP Obstruction
In the wake of Antonin Scalia’s sudden death, the Beltway press almost immediately began to seamlessly frame the unfolding debate about the Supreme Court justice’s replacement along the contours of Republican talking points. To do so, the press continued its habit of looking away from the GOP’s stunning record of institutional obstructionism since 2009.
Immediately after the news broke of Scalia’s passing, Republican Senate leaders, GOP presidential candidates, and conservative commentators declared that the job of picking Scalia’s replacement should be performed not by President Obama, but by his successor.
Quickly suggesting that Obama was picking a “fight” with Republicans by signaling he plans to fulfill his constitutional duty by nominating Scalia’s successor, the press aided Republicans by presenting this radical plan to obstruct the president as being an unsurprising move that Democrats would likely copy if put in the same position during an election year. (Given the rarity of the situation precedents aren’t perfect, but it’s worth mentioning that during the election year of 1988, Democrats actually did the opposite, confirming Justice Anthony Kennedy unanimously.)
The framework for much of the coverage regarding the GOP’s radical demand that Scalia’s seat sit empty for a year is this: It’s Obama’s behavior that’s setting off a showdown, and of course Republicans would categorically oppose anyone Obama nominates. But journalists often don’t explain why: Why is it obvious Obama would have zero chance of getting a Supreme Court nominee confirmed when every president in the past has been able to fill vacancies?
Is it unusual for a president to face a Supreme Court vacancy his final year in office? It is. But there’s nothing in the Constitution to suggest the rules change under the current circumstances. (Obama still has 50 weeks left in office.) It’s Republicans who have declared that all new rules must apply. And it’s the press that has rather meekly accepted the extreme premise.
Note that Republicans and their conservative fans in the media aren’t telling Obama that a particular nominee he selects to become the next justice is flawed and will likely be rejected after hearings are held. Republicans are telling Obama that there’s no point in even bothering to make a selection because the Senate will reject anyone the president names. Period. The seat will remain vacant for an entire year. That is the definition of radical. But the press still looks away.
For instance, Politico reported the president “was facing the choice between setting off a nasty brawl with Congress by seizing the best chance in a generation to flip the ideological balance of the Supreme Court, or simply punting.” The Politico headline claimed Obama had chosen to “fight” Republicans.
But Obama faces no real “choice,” and he isn’t the one who decided to pick a “fight.” As president of the United States he’s obligated to fill Supreme Court vacancies.
The New York Times stressed Scalia’s death had sparked “an immediate partisan battle,” suggesting the warfare ran both ways. But how, by doing what he’s supposed to do as president, is Obama sparking a “partisan battle”?
If Obama eventually decided to nominate an extremely liberal justice to replace the extremely conservative Scalia, then yes, that could accurately be described as sparking a “partisan battle.” But what could be “partisan” about the president simply doing what the Constitution instructs him to do?
Meanwhile, the Associated Press framed the unfolding story as Obama’s announcement being “a direct rebuttal to Senate Republicans,” without noting the Republican demand that a Supreme Court justice’s seat sit empty for at least a year is without recent precedent.
And BuzzFeed suggested Scalia’s vacancy is different because the justice was, “as one Republican put it, ‘a rock solid conservative seat,’ and given the divisions on the court conservatives will be adamant that one of their own replace him.”
But that’s not how Supreme Court nominations work. Obviously, while the Senate has the responsibility to advise and consent on nominees, the party out of power doesn’t get to make the selection. So why the media suggestion that Republicans deserve a say in this case, or else?
Again and again, the press has depicted Obama’s expected action in the wake of Scalia’s death as being highly controversial or partisan, when in fact it’s Republicans who are acting in erratic ways by categorically announcing they’ll refuse to even consider Obama’s next Supreme Court pick.
The sad part is this type of media acquiescence has become a hallmark of the Obama era. Republicans have routinely obliterated Beltway precedents when it comes to granting Obama the leeway that previous presidents were given by their partisan foes in Congress.
Yet each step along the way, journalists have pulled back, refusing to detail the seismic shift taking place. Instead, journalists have portrayed the obstruction as routine, and often blamed Obama for not being able to avoid the showdowns.
Today’s Republican Party is acting in a way that defies all historic norms. We saw it with the GOP’s gun law obstructionism, the sequester obstructionism, the government shutdown obstructionism, the Chuck Hagel confirmation obstructionism, the Susan Rice secretary of state obstructionism, the Hurricane Sandy emergency relief obstructionism, and the consistent obstruction of judicial nominees.
For years under Obama, Republicans have systematically destroyed Beltway norms and protocols, denying the president his traditional latitude to govern and make appointments. It’s sad that in Obama’s final year in office, the press is still turning a blind eye to the GOP’s radical nature.
By: Eric Boehlert, Media Matters for America, February 15, 2016
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