“That 1992 Clip Of Biden Is Very Misleading”: No, Joe Biden Is Not A Supreme Court Hypocrite
It’s a mighty thin reed that Republican leaders hang onto when they selectively cite then-Sen. Joe Biden’s remarks from 24 years ago as evidence to deny any Obama appointee to the Supreme Court a fair hearing and a vote. President Obama is right in saying, “We all know senators say stuff all the time,” and the excerpt Mitch McConnell and the other Republican leaders cite to support their obstructionism is not what Biden was saying when he spoke at length on the Senate floor in late June 1992.
It was the end of the court’s term, a time when aging justices often hand down their resignations. There were retirement rumors about 83-year-old Justice Harry Blackmun. Biden, in his role as chairman of the Judiciary Committee, wanted to discourage Blackmun from stepping down and the Bush White House from thinking it could confirm a replacement before the election now five months away.
There was no vacancy on the court, and Biden wanted to keep it that way. In just two weeks, the Republicans would hold their party convention with President George H.W. Bush running for re-election in a highly charged three-person race against Democrat Bill Clinton and Independent Ross Perot. In the Senate, hard feelings lingered from the previous October’s Anita Hill hearings, and Biden warned that if the administration tried to get one or the other justices to resign in order to create a vacancy, he wasn’t inclined to go along with that.
And if they did—and here’s the olive branch, which funny enough isn’t getting much air time as the old clip is replayed—he would consider confirmation of a nominee in the Kennedy mode, as in Justice Anthony Kennedy, a solid but conservative-leaning jurist who was confirmed unanimously in February 1988, Ronald Reagan’s last year in office. Biden didn’t in any way say or imply he wouldn’t be holding hearings, or that he would do what McConnell and the other Republicans on the Judiciary Committee are doing, which is sight unseen refusing to hold hearings or to even meet with the nominee.
It is a show of disrespect not only for Obama but also for the Constitution and the executive’s role to propose and the Senate’s to advise and consent. McConnell gleefully cited the cherry-picked Biden excerpt as proof of what would happen “if the shoe were on the other foot.” But if that were true, the GOP would at least go through the motions before regretfully finding the nominee is an extremist they can’t support. That would be rough politics as usual.
The bigger question: Will anyone nominated be out of the running for Hillary Clinton, if she’s the next president? Or will that person move to the front of the queue? Will Republicans feel compelled to go after that person with extra zeal? And given these unknowns, who would say yes to Obama?
Biden chaired the Senate Judiciary Committee from 1987 to 1995, presiding over two of the most contentious nominations in history, Robert Bork and Clarence Thomas. Bork’s “originalism,” in the mold of the late Justice Antonin Scalia, sparked strong opposition and his extensive writings gave critics plenty to work with. The assault was brutal, giving rise to the verb, to be “borked.” Biden won praise for challenging Bork on certain rights to privacy that he rejected because they weren’t enumerated in the Constitution. The full Senate rejected Bork 58-42, with six Republicans joining 52 Democrats to vote against him.
The Anita Hill hearings in October 1991 were not Biden’s finest hour, and his role chairing those hearings will be reprised in the HBO movie Confirmation, airing on April 11 and starring Kerry Washington as Hill, Wendell Pierce as Clarence Thomas, and Greg Kinnear as Biden.
Emotions are still raw even after 25 years, and the scuttlebutt in Washington is that Biden will not be pleased with his depiction in the film as far too deferential to Thomas.
That may surprise viewers today, but criticism then of Biden, as one disaffected liberal put it, was not that he was a partisan in-fighter, but that “he bent over backwards to grease the skids for the most unqualified successful Supreme Court nominee we have ever seen.”
People involved in the fight then and interviewed for this article did not want to be quoted by name. The hearings were brutal, with Thomas calling them “a high-tech lynching.” Women’s groups siding with Hill were convinced Thomas was lying and demanded Biden order lie-detector tests and subpoena records of X-rated films Bork had allegedly rented. They blamed Biden for not putting more pressure on Hill to come forward earlier.
The coziness of an all-male and all-white Judiciary panel grilling Hill, a prim college professor who had reluctantly come forward alleging sexual harassment by Thomas, set the stage for a political revolution. The following year, 1992, a record number of women sought political office and a record number won, dubbing it the “Year of the Woman.”
The HBO film will portray at least one witness against Thomas that Biden never called and that critics believe could have ended Thomas’s confirmation. Biden in his role as chairman told the woman the Republicans had dug up more stuff on her, and he described what she would face on national television if she came forward. She chose not to testify, and her statement is in the hearing record.
Confirmation will air at a potentially critical time in the current court fight, but whatever conclusions viewers draw, it should be underscored that Biden let the nominations of Bork and Thomas go forward even if he and his political party disagreed. They each got a vote, and Thomas is now in his 24th year on the court after being confirmed with a mere 52 votes in the Senate.
By: Eleanor Clift, The Daily Beast, March 3, 2016
“Secretly On The Ballot In November”: The Future Of The ‘Nuclear Option’ For Supreme Court Nominees
After the initial intense focus on President Obama’s determination to nominate a successor to Antonin Scalia and Senate Republicans’ determination to block him, it’s beginning to sink in that the struggle for control of the Supreme Court could be a complicated and drawn-out battle. As Juliet Eilperin and Robert Barnes of the Washington Post point out today, the next president could have more than one chance to appoint a justice, and both conservatives and liberals understand the stakes could be huge:
The Scalia vacancy technically gives Obama the chance to establish a liberal majority on the court for the first time in decades, but even if he manages to seat a new justice in the face of blanket GOP opposition, the victory could be fleeting …
Scalia’s death at age 79 shows the peril of making predictions about the Court’s future, but the age range among the current justices would suggest that a Republican successor to Obama could have greater impact on remaking the court than a Democrat, especially if Scalia’s seat stays vacant into the next administration. Simply put, the court’s liberal bloc is older and may offer more opportunities for replacement.
When the new president is inaugurated, Associate Justice Ruth Bader Ginsburg will be almost 84. Anthony Kennedy will be 80 and Stephen Breyer, 78. Replacing Ginsburg and Breyer, both appointees of President Clinton, with conservatives would instantly shift the court’s balance for years, even if an Obama’s appointee were to replace Scalia. (The next oldest justice is Thomas, who was nominated by George H.W. Bush and will be 68 this summer.)
Many conservatives, of course, hate Kennedy, too; he was the swing vote in upholding Roe v. Wade in 1992, and played a key role in the Court’s marriage-equality decisions.
But more fundamentally, partisan polarization and gridlock in Congress has significantly elevated the importance of non-legislative entities, including the federal courts and executive-branch agencies whose power the courts might choose to expand or restrain. So control of the commanding heights of the Supreme Court is more important than ever.
What complicates the issue is the precedent set by Senate Democrats under Harry Reid in 2011 (Republicans had come close to taking the same action in 2005): the so-called “nuclear option,” removing the right to filibuster executive branch and non-SCOTUS judicial appointments. With both parties in the Senate steadily retreating from the ancient practice of deferring to the president’s choices for the High Court, and with the hot-button issues facing SCOTUS making “compromise” choices less feasible, the difference between having to muster 50 and 60 Senate votes to confirm a presidential nomination is increasingly momentous. And for that reason, if either party wins both the White House and the Senate this November, going “nuclear” on SCOTUS appointments by getting rid of the filibuster is a very high probability (and even if it doesn’t happen, the threat of “going nuclear” can and will be used to force the minority party to be reasonable).
But the converse situation is worth pondering, too. If, to cite a lively possibility, Democrats hang onto the White House while Republicans hang onto the Senate, there is no way the Senate invokes the “nuclear option.” Senate resistance to a progressive justice would likely stiffen in 2018, when Republicans will enjoy one of the most favorable Senate landscapes in memory. 25 of 33 Senate seats up that year are currently Democratic, including five in states Obama lost twice. Add in the recent GOP advantage in the kind of voters most likely to participate in midterm elections, and the ancient tendency of midterm voters to punish the party controlling the White House, and the odds of a Democratic president being able to impose her or his will on the Senate on crucial SCOTUS nominations between 2019 and 2021 is very slim.
If Democrats want to shape the Court’s future, they’d do well not only to win the White House but to take back the Senate this November, and get rid of the SCOTUS filibuster in hopes that restoring it will be too controversial for Republicans even if they reconquer the Senate in 2018. By then, of course, Senate Republicans may be looking forward to their own ability to shape the Court after 2020 if they win back the presidency then. It’s going to be a chess game with big and continuing arguments over the rules.
By: Ed Kilgore, Daily Intelligencer, New York Magazine, February 29, 2016
“Taking A Shit On The Constitution”: Senate Republicans Make Donald Trump Look Good
When a presidency is winding down we start to think there probably isn’t that much to fight over. Yet here are the Republicans acting like it’s 2009 all over again, and more. These moves on the Supreme Court situation and Guantanamo Bay aren’t just obstructionist. They are certifiably insane.
No hearing for the nominee? Not even a courtesy call? They’ve really gone ’round the bend. Look, there’s hypocrisy to go around on Court stuff. Reverse the situation, and a lot of people saying A now would be saying Not A. I get that. Although I don’t get what in the world that 1992 clip of Joe Biden that everybody’s showing and re-showing has to do with anything. He was speaking hypothetically. There was no nominee. The one time in Biden’s tenure as Judiciary Committee chairman that there was a flesh-and-blood nominee, Anthony Kennedy, the committee and the full Senate passed him through unanimously, and in an election year.
But since you brought up the old days, let’s talk Robert Bork. Bork was a crazy radical extremist. He saw no constitutional justification for the civil rights bill. He also thought states should be free to criminalize the purchase of contraception by married couples. Off the charts, that guy. But he was the president’s choice. The Democrats gave him a hearing.
Say what you want, conservatives, but I feel pretty confident that if the situation were precisely reversed, the Democrats would be going through the process. At the end of the day, a majority of them would presumably vote against a conservative, balance-tilting nominee in a presidential election year. So, you might say, it amounts to the same thing.
No. It doesn’t amount to the same thing. One approach is called respecting the Constitution. The other approach is called taking a shit on the Constitution.
I suppose I could be wrong about what my hypothetical Democrats would do. But I don’t think so. Why? Because the liberal-left base, while certainly ideological and often choleric, just isn’t the same thing as the right-wing base. The right-wing base, led by Limbaugh and all those blowhards, is the reason McConnell said what he said while Scalia’s body was still warm. The liberal groups would not have demanded of Democratic leaders that they just shut the process down.
And if I am wrong about the Democrats, I can 100 percent guarantee you this: I would have written a column calling their behavior shameful. Vote against the person in the end, I’d have written, but for Chrissakes, respect the constitutional process, you bunch of morons. And I think every other prominent liberal columnist I can think of would have done the same. I don’t recall these last few days seeing any of our conservative counterparts calling out the Republicans.
Obama and the Democrats better find a way to make them pay. Nominate an unimpeachably qualified Latino or African American, and let Latinos and/or black voters watch as the GOP stonewalls this person for months, and run 3,000,000 attack ads on ethnic radio stations. (This is the paragraph where conservatives on Twitter will say “There goes that hack Tomasky making everything racial again.” Right. Whereas the guy who wants a brown-shirt police force to go in and break up Latino families, no, he’s not making anything racial. And the party that’s passing law after law to see to it that voting is made as hard as it can be for black people, no, they’re not making anything racial either. Just me. I get it.)
It’s such scandalous behavior. But because it’s them, and it’s all anyone expects out of them, it’s not even scandalous anymore. Which brings us to the Gitmo situation. If anything this is even worse.
Let me ask you this, reader. Do you have the slightest idea where the nearest supermax prison is to your house? Of course you don’t. Oh, a few of you do—you live in a town where it’s a big employer, your cousin works there, like that. But I’d wager that 98 percent of Americans have no idea where the nearest supermax prison is. There appear to be around 50 (some are wholly supermax, some partly). I bet thousands of people drive past one every day without even knowing it.
And of the 2 percent who do know, do they have any idea who’s in there? How many murderers, rapists, drug kingpins, Bernie Madoffs? Of course they don’t. And the reason they don’t is that the prisoners inside these prisons have zero impact on their lives. Dzhokhar Tsarnaev, Zacarias Moussaoui, and Mahmud Abuhalima, terrorists all, live in a supermax prison in Florence, Colorado. Do the good people of Florence ever see them? They don’t even see each other. They spend 23 hours a day alone in a cell the size of a typical upstairs-hallway bathroom. And almost nobody ever escapes from these places. You know how your chances of being killed by a terrorist as an American are one in 3.5 million? Well, the odds of you being killed by a terrorist who escaped from a supermax prison have to be considerably longer than even that. Anyone in Florence, Colorado and environs who sits around worrying that one of these guys is going to come pounding on their screen door is a paranoid lunatic or an idiot.
And that’s what the Republicans want us to be, a nation of paranoid lunatics and idiots, because paranoid lunacy and idiocy tend to benefit the Republican Party at the polls. So this is what we get stuck with. We keep open this facility (Gitmo) that’s notorious around the world—the Arab world and the entire world—that gives America a horrible reputation and whose very existence provides rhetorical fodder for our foes, so we don’t run the “risk” of putting terrorists inside facilities they’ll never get out of and where their movement the rest of their lives will be limited to maybe four rooms.
The Republicans won’t pay any political price for this, because the mere word terrorism turns most Americans into quivering little poltroons. But we as a country pay a price when an argument that is so galactically far removed from objective reality carries the day. And we pay a price when a constitutional norm is flouted and no one even cares because everyone has long since stopped expecting anything more. It’s not easy making Trump look good, but this week, Washington Republicans have pulled it off.
By: Michael Tomasky, The Daily Beast, February 25, 2016
“Corporate Sponsors Should Pay His Salary”: Why Should You And I Have To Keep Paying Mitch McConnell’s Salary?
Antonin Scalia is gone. The nastiest and noisiest of right-wingers on the Supreme Court is dead.
But he can’t be any more brain dead than Mitch McConnell, the Republican leader of the U.S. Senate. In a blatantly partisan ploy to prevent President Obama from nominating a successor to Scalia, McConnell has cited a historical precedent dictating that presidents who are in the last year of their term do not name new justices to the high court. “Therefore,” he babbled, “this vacancy should not be filled until we have a new president.”
What a silly old squirrel McConnell is! Article II of the U.S. Constitution plainly states that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the Supreme Court.” Note that the Constitution says the president “shall” do this — as a duty to the nation. Nothing in the founding document suggests that this power and duty is voided in an election year. In fact, 13 Supreme Court nominations have been made in presidential election years, and the Senate took action on 11 of them. McConnell’s assertion is bogus (and silly), for history and the Constitution clearly back Obama.
Ironically, one who would have nailed McConnell for such a slapstick political perversion of plain constitutional language is Scalia himself. He practiced what he called “originalism” in his official judgments, insisting that the Constitution must be interpreted only by the words in it and only by the original meaning those words had for the founders when they wrote them into the document.
McConnell’s squirrelly stall tactic is as ridiculous as it is shameful. It’s also totally hypocritical, since Mitch himself voted in February 1988 to confirm a Supreme Court nominee put forth by Ronald Reagan — in the last year of his presidency.
This leads me to ask, why should you and I have to keep paying McConnell’s salary? Not only is he a Senate majority leader who doesn’t lead; the lazy right-wing lawmaker really doesn’t do anything, refusing to pick up the legislative tools he’s been given and go to work on the many things that We The People — and America itself — need Congress to do. Imagine if you tried doing nothing on your job — just drawing your paycheck after ignoring your workload!
Repeatedly, this senatorial slug says no to every task at hand. Repair and replace the water pipes that leach lead and are poisoning families all across America? No, he yawns. Raise the minimum wage to help bridge the dangerous wealth gap separating the superrich from the rest of us? Don’t bother me with such stuff, Mitch snaps. Shut off that gusher of corrupt corporate money pouring into our elections and drowning the people’s democratic rights? Not my problem, shrugs the lumpish ne’er-do-well.
And now a straightforward constitutional duty has been handed to McConnell: Gear up the Senate’s “Advise and Consent” mechanism to approve or reject President Obama’s nominee to replace Justice Scalia. We’ll do it tomorrow, muttered the somnolent senator, content to put off his responsibility to our nation’s system of justice until next year, long after Obama is gone.
We’re paying this guy a salary of $174,000 a year, plus another $19,400 for his “service” as majority leader. It’s insulting that he won’t even go through the motions of doing his job. Of course, saying no to all the chores he ought to be doing for the people is exactly what the corporate sponsors of his Republican Party expect from him. They want an inert and unresponsive government, a poverty-wage economy, a plutocratic election system and a court of their own choosing.
So “Do Nothing” Mitch is their boy. But at the very least, shouldn’t they pay his salary, rather than sticking us with the cost?
By: Jim Hightower, The National Memo, February 24, 2016
“Making Up Traditions That Don’t Actually Exist”: GOP Tries To Make Up Supreme Court ‘Tradition’ That Doesn’t Exist
Marco Rubio, like most Senate Republicans, intends to maintain a blockade against any Supreme Court nominee put forward by President Obama, regardless of the person’s qualifications. He even has a talking point he’s eager to share.
Yesterday, CNN’s Jake Tapper noted, for example, that Justice Anthony Kennedy was confirmed in President Reagan’s final year in office, but Rubio replied that doesn’t count because the nomination was made a couple of months prior. The senator added:
“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.”
Rubio isn’t the only one using the word “tradition” this way. Sen. Lisa Murkowski (R-Alaska) said on social media yesterday that President Obama should “follow a tradition embraced by both parties and allow his successor to select the next Supreme Court justice.”
I’m not unsympathetic to the idea that traditions matter in the political process. In fact, I made just such a case earlier this week, exploring the consequences of congressional Republicans abandoning traditional norms that have helped make governing possible for generations.
But now seems like a good time to add some clarity to the matter. Honoring traditions is one thing; making up traditions that don’t actually exist is something else.
Look at that Rubio quote again: “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.”
Now, I have no idea if Rubio is confused, uninformed, or trying to deceive the public. I do know, however, that his talking point doesn’t make any sense.
There is no such “tradition.” In order for something to become “traditional,” it has to happen routinely over the course of many years, and in this case, the number of instances in which both parties have agreed to leave a seat on the Supreme Court vacant for a year, waiting for an upcoming presidential election to come and go, is zero.
Or put another way, if Rubio and Murkowski want to compile a list of all the examples that help establish this tradition – instances in which Supreme Court vacancies went unfilled because it was a presidential election year – I’d find that incredibly useful.
But I have a hunch such a list won’t appear anytime soon. That’s because plenty of presidents have nominated justices in election years – and those nominees have generally been confirmed.
One might even say the American tradition holds that presidents do their jobs when there’s a vacancy (choosing a nominee), which leads senators do their jobs (consider that nominee for the bench).
It’s one thing to make up “rules” that don’t exist. But to characterize an event that hasn’t occurred as a bipartisan “tradition” is to take partisan propaganda to unhealthy levels.
By: Steve Benen, The Maddow Blog, February 18, 2016
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