It’s All About the Base
On the day that Justice Antonin Scalia died, Republican Congressional leadership discovered the “principle” that Supreme Court vacancies occurring during the eighth year of a presidency should not be filled by the sitting president.
Republicans claim no legal basis for this principle, because there is none – not in the constitution or in any law. Initially, they claimed a basis for their principle in precedent, citing an 80-year “tradition” of not confirming Supreme Court nominees in election years.
The problem with that argument, as I’ve pointed out, is that there is no such tradition. In the last 80 years, three Supreme Court nominees came up for consideration during election years, and two were confirmed. The third, President Johnson’s nominee for chief justice, Abe Fortas, was rejected by a heavily Democratic Senate – not because it was an election year, but because of substantial ethics questions about Fortas’s conduct while he was serving as an associate justice.
More recently Republicans fled to a 1992 speech by then-Senator and Judiciary Committee Chair Joe Biden, claiming that the speech had established a “Biden Rule” against consideration of a Supreme Court nomination during an election year.
The problem with that argument is that Senator Biden said no such thing. Speaking on June 25, 1992, Biden actually said that if a vacancy should occur that summer, and if a nomination should be made in the days leading up to the presidential nominating conventions, the nomination would be unnecessarily politicized. Given that, Biden said that President Bush should wait until after the elections to nominate a candidate. If the president went ahead with a summer nomination, Biden said that the Senate would give “serious consideration” to deferring the confirmation hearings until after the election. Serious consideration of delaying the confirmation process a few months is a long way from a blanket refusal.
So the Biden Rule, if rule there be, is that if a president nominates a Supreme Court justice right before presidential nominating conventions, the Senate should “seriously consider” putting confirmation off until after the election.
Senate Majority Leader Mitch McConnell announced a new rule that bears no family resemblance to the “Biden Rule”: no president should nominate a Supreme Court justice during the final year of the presidency; and if a president does make such a nomination, the Senate should refuse to consider the nominee, should refuse even to meet with the nominee, and should refuse the nominee the basic courtesy of shaking hands.
The Republican reasoning, which I’ve called “a mighty piece of sophistry,” is that “the American people need to decide who is going to make this appointment rather than a lame-duck president.” The implication, of course, is that if President Obama makes the nomination, then the American people will not have decided. Apparently, the voting public that elected and re-elected President Obama decided it was okay for Obama to nominate Sonia Sotomayor to the Court on May 26, 2009, and Elena Kagan on May 10, 2010, but not anybody at all on any day during 2016, before or after the election.
Whenever people do something that has never been done before, it seems logical to consider whether there is some other unprecedented circumstance that motivated the unprecedented decision. And of course I’m implying that the unprecedented circumstance of an African-American president motivated the unprecedented refusal to consider any Supreme Court nominee at any time during 2016.
Okay, I’m not implying it – I’m saying it outright.
I’m not saying that Senator McConnell is a racist. I’m saying that McConnell is protecting the Republican leadership, including himself, from further backlash from the party’s primary voters.
There has been a ton of ink spilled in the last nine months or so about the “anger” of Republican voters about “betrayals” by Republican leadership. This seems strange to me, since Republicans in Congress have fought tooth and nail against President Obama’s agenda, with significant successes.
Republicans engineered the shut-down of the federal government, nearly brought about a catastrophic federal debt default, shouted “you lie” at the president from the floor of Congress, and apologized to one of the most notorious oil polluters in history for the president’s promise to hold BP to account. Republicans have manifested animosity to President Obama to a degree not seen since the last days of the Nixon Administration.
So how were Republican voters “betrayed”? They were betrayed because McConnell did not keep his promise to limit President Obama to one term. They were betrayed because Congress did not keep Obama from taking executive action on air pollution and global warming, immigration, Guantanamo Bay, and a host of other matters. They were betrayed because Republican leaders allowed a black man to be the commander-in-chief of the United States military, ordering people around as if he was, well, the president. Republican voters were betrayed, in short, because President Obama lives in the White House, works in the Oval Office, and exercises all of the constitutional and statutory powers of the presidency. They were betrayed because Republican leaders failed adequately to protect and defend white male Christian heterosexual predominance against the onslaught of diversity and multi-culturalism.
This is the “anger” that Republican voters are expressing. And if that anger is sufficient to nominate Donald Trump over the nearly unanimous preferences of Republican leadership, then Republican leadership itself is at serious risk. Thus Senator McConnell’s refusal to consider President Obama’s nominee – who would put a pause on the expansion of gun rights and the suppression of voter rights, marriage rights and reproductive rights – this refusal is McConnell’s last stand. If he fails, he knows that establishment Republican leadership is finished.
That’s why McConnell can’t yield, and won’t yield, no matter how badly the general electorate turns against his position. In other words, with apologies to Meghan Trainor, it’s all about the base, ’bout the base.