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“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

February 17, 2016 Posted by | GOP, Mitch Mc Connell, Republicans, U. S. Supreme Court Nominees | , , , , , , , , | 1 Comment

“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

February 16, 2016 Posted by | GOP, Governing, U. S. Supreme Court | , , , , , , , , | Leave a comment

“History Isn’t On Their Side – And Neither Is The Calendar”: Justice Kennedy’s Confirmation Debunks Key GOP Talking Point

Soon after Supreme Court Justice Antonin Scalia’s death was announced, Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) said in a statement, “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.”

The fact of the matter is the chairman of the Senate Judiciary Committee should have done his homework before getting this wrong.

The “80 years” talking point spread like wildfire in Republican circles – it was repeated by Ted Cruz and Marco Rubio during Saturday night’s debate – to the point that the GOP has convinced itself that at no point in the modern era has the Senate confirmed a Supreme Court justice in an election year.

About 14 justices were confirmed in election years, and perhaps the most pertinent example is Justice Anthony Kennedy. As the Washington Post’s E.J. Dionne noted this morning:

A Senate controlled by Democrats confirmed President Reagan’s nomination of Anthony Kennedy on a 97 to 0 vote in February 1988, which happened to be an election year.

Yes, in Reagan’s eighth year, nine months before Election Day 1988, the Democratic-led Senate confirmed Kennedy with ease.

Chuck Grassley, who’d already been in the Senate for seven years at that point, delivered remarks on Feb. 13, 1988 – exactly 28 years to the day before Scalia’s passing – urging the Senate to confirm Kennedy during that election year.

Grassley voted for Kennedy’s nomination on the Senate floor soon after. So too did a young man by the name of Mitch McConnell, a Republican senator from Kentucky in his first term.

At the time, Ronald Reagan, stung by two failed nominees to the high court (Douglas Ginsburg and Robert Bork), said at the time that if Senate Democrats played election-year games by stalling on Kennedy’s nomination in 1988, the “American people will know what’s up.”

And on this, he was correct.

But we know, of course, that Democrats didn’t bother. There was a vacancy on the Supreme Court; the White House nominated a qualified and credible jurist; the Senate considered his qualifications; and he was confirmed in an election year without much of a fuss – even though the Senate was controlled by Democrats and Reagan was a Republican president.

It’s true that Kennedy was first nominated in late 1987, but the point is the right is now arguing that election-year confirmation votes have no modern precedent. Or as Grassley put it, “[I]t’s been standard practice over the last 80 years to not confirm Supreme Court nominees during a presidential election year.”

The Kennedy example proves otherwise.

If this were December 2016, Senate Republicans would be in a far better position to balk. But it’s mid-February, and the Senate’s to-do list for the next several months is quite thin. History isn’t on their side – and neither is the calendar.

 

By: Steve Benen, The Maddow Blog, February 15, 2016

February 16, 2016 Posted by | Chuck Grassley, Mitch Mc Connell, U. S. Supreme Court Nominees | , , , , , , , | 2 Comments

“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

February 16, 2016 Posted by | GOP, Mitch Mc Connell, Senate, U. S. Supreme Court | , , , , , , , , | Leave a comment

“It Will Be Easy To Replace Antonin Scalia”: In Terms Of Quality In A Supreme Court Justice, He Will Be Easy To Replace

Antonin Scalia’s unexpected death came as a shock to me—and not just because I had plans until recently to go hiking this weekend in Big Bend, Texas, where the justice died. Scalia has been a fixture on the Supreme Court for my entire legal career, and he didn’t seem to be going anywhere. During Barack Obama’s presidency, he hunkered down: no way would a Democrat appoint his successor. The right adored him as much as the left reviled him. He was the Court’s most colorful personality since William “Wild Bill” Douglas retired in 1975. Scalia’s family will miss him, and they are surely hurting right now. They have my sympathies. But as the tributes roll in and Scalia’s impact on the Court comes into focus, I predict a consensus will emerge that he has damaged the institution he served for so many years.

It is ironic that Scalia died during this particular presidential campaign, because he strongly resembled two leading Republican hopefuls: Donald Trump and Ted Cruz. Like Trump, Scalia was larger than life. He took his elbows with him wherever he went. The more outrageous his rhetoric, the more his fans lapped it up. Scalia trashed his colleagues’ writing, calling it “preposterous” and compared it to “the mystical aphorisms of the fortune cookie”; their reasoning was “patently incorrect” and “transparently false.” With his low punches and salty talk, Scalia coarsened the Court—just as Trump has coarsened the presidency. As the much more restrained John Paul Stevens said to one of Scalia’s biographers, “I think everybody respects Nino’s ability and his style and all the rest. But everybody on the Court from time to time has thought he was unwise to take such an extreme position, both in tone and in the position.”

Like Ted Cruz, Scalia possessed a rare intellect. (Cruz, a former Supreme Court law clerk and appellate lawyer, was a big fan.) Scalia was for a time the Court’s most persuasive voice on technical matters like jurisdiction and procedure. He was an unquestionably talented writer. No justice had a quicker wit. Yet, also like Cruz, Scalia proved ineffective within the constraints of an organization, where cooperation and pragmatism tend to produce results. His strident behavior alienated the people around him. “Screams!” wrote Justice Harry Blackmun on a draft Scalia dissent in 1988. “Without the screaming, it could have been said in about 10 pages.” When a very junior Scalia commandeered an oral argument in 1987, Justice Lewis Powell whispered to a colleague on the bench, “Do you think he knows that the rest of us are here?” Scalia seemed to make a special point of picking on Anthony Kennedy, the Court’s swing voter for the past ten years, and an essential member of any 5-4 coalition. His inability to hold his fire or to build consensus meant that he was assigned few important majority decisions in the later years of his career.

I will remember Scalia mainly for the ugliness that permeated his opinions. He once wrote with astonishing callousness that it is not unconstitutional to execute an innocent person if that person has received a fair trial. He described affirmative action as “racial discrimination,” and mocked the notion that it could help students achieve “cross-racial understanding.” (No one squeezed more sarcasm out of a quotation mark.) A devout Roman Catholic, Scalia harbored a particular scorn for “the homosexual agenda,” writing in a paper-thin third-person: “Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.”

Scalia had been slipping lately. He made a spectacle of himself before journalists, flipping his chin at them and giving needlessly provocative speeches. He openly flouted the Court’s recusal traditions, going on a hunting trip with Dick Cheney and then refusing to recuse himself from a suit against the vice president. He engaged in an unseemly public spat with Judge Richard Posner, going so far as to call Posner a liar after Posner panned Scalia’s latest book. The invective in his opinions and his behavior at oral argument had become truly outrageous, and caused many a citizen to associate the Supreme Court with cheap partisan point-scoring. It has been a long fall for what had been one of the most trusted institutions in government.

Scalia was a character, and he will be hard to forget. But in terms of quality in a Supreme Court justice, he will be easy to replace.

 

By: Michael McDonnell, Contributor, Ten Miles Square, The Washington Monthly, February 14, 2016

February 15, 2016 Posted by | Antonin Scalia, Donald Trump, Ted Cruz, U. S. Supreme Court | , , , , , , , , | 2 Comments

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