“The Constitution Has Established A Process”: Obama Delivers Unmistakable Message To Republicans
President Obama hosted a press conference at the U.S.-Association of Southeast Asian Nations summit in California yesterday, which comes against a backdrop in which the future of the Supreme Court is dominating much of the domestic political conversation. The president is obviously aware of Senate Republicans’ plans for a total blockade against nominee, regardless of merit, so Obama took some time to remind GOP lawmakers about the constitutional process.
“The Constitution is pretty clear about what is supposed to happen now. When there is a vacancy on the Supreme Court, the President of the United States is to nominate someone. The Senate is to consider that nomination, and either they disapprove of that nominee or that nominee is elevated to the Supreme Court.
“Historically, this has not been viewed as a question. There’s no unwritten law that says that it can only be done on off years – that’s not in the constitutional text. I’m amused when I hear people who claim to be strict interpreters of the Constitution suddenly reading into it a whole series of provisions that are not there. There is more than enough time for the Senate to consider in a thoughtful way the record of a nominee that I present and to make a decision.”
Unfortunately for the right, all of this has the benefit of being true. The Constitution has established a process; Obama intends to follow the process; and there’s plenty of time for senators to do their jobs. It’s all surprisingly simple, and to date, Republicans haven’t come up with any coherent defense for rejecting any White House nominee, sight unseen.
Reflecting on the broader political circumstances surrounding judicial nominees, the president added, “The fact that it’s that hard, that we’re even discussing this, is I think a measure of how, unfortunately, the venom and rancor in Washington has prevented us from getting basic work done. This would be a good moment for us to rise above that.”
You can almost hear GOP senators laughing at a distance.
Looking ahead, the president reminding Republican lawmakers, “This is the Supreme Court. The highest court in the land. It’s the one court where we would expect elected officials to rise above day-to-day politics. And this will be the opportunity for senators to do their job. Your job doesn’t stop until you’re voted out or until your term expires. I intend to do my job between now and January 20th of 2017. I expect them to do their job as well.”
Of course, the high court vacancy isn’t the only subject on the political world’s mind. There’s also the matter of the election to choose President Obama’s successor.
As NBC News reported, Obama has taken note of the Republican frontrunner.
President Barack Obama on Tuesday reiterated that he doesn’t believe New York businessman Donald Trump will ever be president, saying the American people realize the highest office in the nation “is not a reality show.”
“I continue to believe Mr. Trump will not be president,” Obama said…. “And the reason is because I have a lot of faith in the American people. And I think they recognize that being president is a serious job.”
“It’s not hosting a talk show or a reality show. It’s not promotion, it’s not marketing. It’s hard. And a lot of people count on us getting it right.”
My suspicion is the leading Republican candidate and his team were delighted to hear this – with just a few days remaining before the South Carolina primary, Obama criticizing Trump is probably the best thing Trump can hope for.
By: Steve Benen, The Maddow Blog, February 17, 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 Electability Conundrum”: Scalia’s Death Only Reinforces The Need For Democrats To Choose Their Nominee Wisely
The death of Antonin Scalia has brought home two truths about the presidential race to voters in both parties. First, there may be no more important issue in the campaign than the Supreme Court (which some of us have been saying for some time). And second, if that’s true, then there may be no more important criterion in picking your party’s nominee than who has the best chance of winning in November.
Unfortunately, electability is a difficult thing to predict, no matter how much you know about politics. During the 2008 primaries, for instance, many intelligent Democrats believed there was no way that the voting public would ever elect an African American with a name like “Barack Hussein Obama.” Four years before, many Democrats thought that John Kerry was the most electable Democrat because Republicans couldn’t possibly attack the patriotism of a war hero, especially with a couple of draft-dodgers like George W. Bush and Dick Cheney at the top of their ticket. Neither of those assessments turned out to be correct.
Nevertheless, it’s an impossible question for partisans to ignore, given the stakes of the election. And just how high are they? Someone (usually someone running for president) will always say “This is the most important election of my lifetime,” and it’s easy to dismiss. After all, no matter what happens, the republic will survive. If you’re a Democrat, you can console yourself with the fact that it survived Ronald Reagan and George W. Bush, as much damage as they might have done; if you’re a Republican you can say the same about Bill Clinton and Barack Obama.
Nevertheless, there are some reasons why this election could be particularly consequential, particularly for Democrats. The first is the Supreme Court, and Scalia’s passing is only part of that story. When the next president is sworn in, Ruth Bader Ginsburg will be 83, Anthony Kennedy will be 80, and Stephen Breyer will be 80. What if Republicans succeed in keeping President Obama from seating a replacement, then a Republican is elected, and some or all of those three fall ill or retire? You could have a Court made up of seven relatively young conservative justices and only two liberals, Sonia Sotomayor and Elena Kagan. The days of liberals losing cases by a 5-4 margin would be but a happy memory, and the overturning of Roe v. Wade, the end of affirmative action, and the crushing of labor union rights would be only the beginning of a judicial scorched-earth campaign that would not only lay waste to rights liberals hold dear, but would keep doing so for decades to come.
And then there’s the matter of what a Republican president would be able to accomplish through legislation. If the GOP nominee wins in November, it will almost certainly also mean that Republicans have held on to the House and the Senate. That president might or not not be a radical conservative, though Donald Trump looks like the only contender with a chance who couldn’t be described that way. But Congress certainly will be radical. The Republican Party has been moving sharply to the right in recent years, and with unified control for the first time in a decade, it’s safe to say they will pretty much go nuts. Repealing the Affordable Care Act, slashing upper-income taxes, gutting the safety net, rolling back environmental regulations, passing federal restrictions on abortion—if it’s in any Republican’s fantasies, it’ll be able to pass through both houses and get signed by the president. And don’t think Democrats having the filibuster will stop that train; given the respect Republicans have shown for norms and traditions, do you think they’ll let that stand in their way?
So if you think electability ought to be part of your calculation, what do you need to consider? The Democratic primary makes it a little easier because there are only two candidates, but it’s still complicated. Here are the variables to consider:
- The reward to be gained from a Bernie Sanders presidency
- The reward to be gained from a Hillary Clinton presidency
- The chances of Sanders winning in November if he’s the nominee
- The chances of Clinton winning if she’s the nominee
- The consequences of a Republican victory in November
That’s not to mention how each Democrat would match up against any given Republican, which introduces another dimension of complexity. But here’s the basic calculation you have to make: Figure out whether, for your preferences, (1) is larger than (2) or vice-versa, and by how much; then figure out whether (3) or (4) is larger, and by how much; then weigh both of those figures against (5).
For instance, you might decide that Bernie Sanders’s presidency would be superior to Hillary Clinton’s, but Clinton has a higher chance of winning in November, and since a Republican presidency would be so dreadful, you’ll support Clinton even though you like Sanders better. Or you might decide that a Sanders presidency would be so good that even if Clinton might have a slightly better chance in November, it’s worth some measure of risk in nominating Sanders because the reward of him winning is so high.
The truth, of course, is that because we aren’t rational people we constantly construct post-hoc justifications for the choices we make. In this case, that means we’ll convince ourselves that whichever candidate we prefer is also the more electable one. While it might seem logical that Clinton has a higher chance of winning a general election than Sanders, I’ve yet to encounter a Sanders supporter who actually thinks so. They say that Clinton has her own electability problems (undoubtedly true), and that Sanders will bring in so many new voters that it will overcome the effect of the attacks Republicans will launch on him for his leftist views. Clinton supporters, on the other hand, find this argument laughable; they’ll tell you that Republicans will positively disembowel Sanders, and by the time they’re done with him he’ll seem like he’s too much of an extremist to get elected to the Burlington City Council.
I’ve also found that Sanders supporters are more likely to minimize the negative consequences of a Republican presidency. That might be because they don’t see as much of a difference between Clinton and the Republicans, but it’s also because they’re focused on the first variable, the potential rewards of a Sanders presidency. Clinton supporters, on the other hand, have no sweeping expectations from their candidate; for them, staving off disaster is more than enough reason to support her.
Even if your heart goes aflutter at Sanders’s mention of things like single-payer health care and free public college tuition, you’d have to grant that achieving those goals is anything but guaranteed even if he wins the White House. And most of what he would do doesn’t differ from what Clinton would do. That’s particularly true of the Supreme Court: Any Democratic president who had a chance to name a new justice would be choosing from the same pool of liberal jurists now serving in federal appeals courts or perhaps a few state supreme courts.
But even if you find the substantive differences between Clinton and Sanders to be enormous, it’s hard to see them as actually being bigger than the difference between them on one hand and the tsunami of change that will occur if a Republican is elected on the other. Which leaves Democratic voters with no choice but think hard about which candidate is more electable—even if there are no perfect answers to the question.
By: Paul Waldman, Senior Writer, The American Prospect, February 15, 2016
“How America Was Lost”: Maybe We Should All Start Wearing Baseball Caps That Say, “Make America Governable Again”
Once upon a time, the death of a Supreme Court justice wouldn’t have brought America to the edge of constitutional crisis. But that was a different country, with a very different Republican Party. In today’s America, with today’s G.O.P., the passing of Antonin Scalia has opened the doors to chaos.
In principle, losing a justice should cause at most a mild disturbance in the national scene. After all, the court is supposed to be above politics. So when a vacancy appears, the president should simply nominate, and the Senate approve, someone highly qualified and respected by all.
In reality, of course, things were never that pure. Justices have always had known political leanings, and the process of nomination and approval has often been contentious. Still, there was nothing like the situation we face now, in which Republicans have more or less unanimously declared that President Obama has no right even to nominate a replacement for Mr. Scalia — and no, the fact that Mr. Obama will leave soon doesn’t make it O.K. (Justice Kennedy was appointed during Ronald Reagan’s last year in office.)
Nor were the consequences of a court vacancy as troubling in the past as they are now. As everyone is pointing out, without Mr. Scalia the justices are evenly divided between Republican and Democratic appointees — which probably means a hung court on many issues.
And there’s no telling how long that situation may last. If a Democrat wins the White House but the G.O.P. holds the Senate, when if ever do you think Republicans would be willing to confirm anyone the new president nominates?
How did we get into this mess?
At one level the answer is the ever-widening partisan divide. Polarization has measurably increased in every aspect of American politics, from congressional voting to public opinion, with an especially dramatic rise in “negative partisanship” — distrust of and disdain for the other side. And the Supreme Court is no different. As recently as the 1970s the court had several “swing” members, whose votes weren’t always predictable from partisan positions, but that center now consists only of Mr. Kennedy, and only some of the time.
But simply pointing to rising partisanship as the source of our crisis, while not exactly wrong, can be deeply misleading. First, decrying partisanship can make it seem as if we’re just talking about bad manners, when we’re really looking at huge differences on substance. Second, it’s really important not to engage in false symmetry: only one of our two major political parties has gone off the deep end.
On the substantive divide between the parties: I still encounter people on the left (although never on the right) who claim that there’s no big difference between Republicans and Democrats, or at any rate “establishment” Democrats. But that’s nonsense. Even if you’re disappointed in what President Obama accomplished, he substantially raised taxes on the rich and dramatically expanded the social safety net; significantly tightened financial regulation; encouraged and oversaw a surge in renewable energy; moved forward on diplomacy with Iran.
Any Republican would undo all of that, and move sharply in the opposite direction. If anything, the consensus among the presidential candidates seems to be that George W. Bush didn’t cut taxes on the rich nearly enough, and should have made more use of torture.
When we talk about partisanship, then, we’re not talking about arbitrary teams, we’re talking about a deep divide on values and policy. How can anyone not be “partisan” in the sense of preferring one of these visions?
And it’s up to you to decide which version you prefer. So why do I say that only one party has gone off the deep end?
One answer is, compare last week’s Democratic debate with Saturday’s Republican debate. Need I say more?
Beyond that, there are huge differences in tactics and attitudes. Democrats never tried to extort concessions by threatening to cut off U.S. borrowing and create a financial crisis; Republicans did. Democrats don’t routinely deny the legitimacy of presidents from the other party; Republicans did it to both Bill Clinton and Mr. Obama. The G.O.P.’s new Supreme Court blockade is, fundamentally, in a direct line of descent from the days when Republicans used to call Mr. Clinton “your president.”
So how does this get resolved? One answer could be a Republican sweep — although you have to ask, did the men on that stage Saturday convey the impression of a party that’s ready to govern? Or maybe you believe — based on no evidence I’m aware of — that a populist rising from the left is ready to happen any day now. But if divided government persists, it’s really hard to see how we avoid growing chaos.
Maybe we should all start wearing baseball caps that say, “Make America governable again.”
By: Paul Krugman, Op-Ed Columnist, The New York Times, February 14, 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
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