Once the death of ultra-conservative Supreme Court Justice Antonin Scalia was announced late on February 13, the wheels of political discourse, the fluidity of the 2016 presidential campaign, and the very core of the United States Constitution was put into play. No matter how this is handled, and chances are very good they will be handled poorly by the current members of the Senate and our sitting president, his name, legacy and his vast and prominent ideological shadow will nonetheless hover.
Elections have consequences.
We have all heard that spouted over and over throughout our lives come campaign time—whether a battle for municipal comptroller, dogcatcher or president of the United States. To the winner goes the spoils—the will of the people is paramount.
To wit: In 2012, Barack Obama, the duly re-elected president of United States, was given the right and responsibility by a majority of the electorate to appoint a Supreme Court judge in the event of retirement, which he has already done twice (Sonia Maria Sotomayor—2009, Elena Kagan—2010), and certainly if one is suddenly vacant. This is clearly framed in the Constitution. The idea put forth by Republican members of the Senate or political rhetoric by GOP candidates that they will not consider his nominee or to refuse to even vote on said nominee is patently unconstitutional.
Now, of course, no one argues that it is the role of the Senate to set parameters and hold hearings and even (wink, wink) stall or filibuster this process, but to arbitrarily state the chief executive, with an entire 11 months remaining in his presidency, cannot appoint a nominee for an empty seat on the Supreme Court is to ignore the will of the people to its elected president, and therefore I argue, treasonous.
If Senate Majority leader Mitch McConnell had just merely said, “We’ll see” and let the process play out in the predictably obstructionist environment largely conducted by the Congress over the past five years into January of 2017, then all is fair. But he did not. Like his bluster about “making Obama a first term president” and leading the charge to obstruct the agenda voted on by the majority of the American public twice in the past seven years, this reeks of partisan pettiness and ideological gridlock; the very reasons why an Independent socialist and a TV star businessman are the currently leading candidates for both major political parties.
Having stated the obvious, President Obama needs to be careful here. Back in 2006, then Senator Obama joined 24 Democrats to filibuster George W. Bush’s nominee, Samuel Alito. Obviously, Alito became a justice, but it did not come “smoothly”, as the president has challenged the Senate this week. And so must the Republicans, in and out of the Senate, tread lightly, as this false notion that not in 80 years has a president gotten a justice confirmed for the Supreme Court as Texas Senator erroneously blurted out during presidential debate in South Carolina. It happened six times in the 20th century alone, the latest, Ronald Reagan’s 1987 appointment of Anthony Kennedy. Lyndon Johnson nominated two people in 1968, after announcing he would not seek re-election—Justice Abe Fortas to the Chief Justice position vacated by Earl Warren. But, of course, you could pack Yankee Stadium with what Cruz doesn’t know about constitutional history.
One thing Cruz, the president, and every Republican, Democrat and Independent on this continent understand is how monumental the Supreme Court has been over the past 30 years deciding on the most pressing social, economic and domestic issues of our day. It is the looming third branch of government, as laid out by the framers of this republic. Its decisions, however controversial, have shaped our history and solidified our Bill of Rights against the tide of painfully slow-moving progress.
However much they hold this fight dear, this is a huge gamble for Republicans, who are underdogs in any general election which gives any Democrat at least 244 very likely electoral votes before a single poll opens. Not to mention it fires up a Democratic electorate that is half as jacked as Republicans, who have only achieved the popular vote once (2004, G.W. Bush) since 1988 (H.W. Bush).
At least Obama will be forced to send a moderate to the Senate, unless he decides to make this political, which he could very well do, which again, will embolden the left and the growing majority of independents with more progressive social concerns. And should the victor be Hillary Clinton or (gulp!) Bernie Sanders the nominee would in no way, shape or form resemble a moderate. It will be as liberal as Scalia was conservative, and that choice will have post-election political capital not available to a lame duck president. Say what you wish about Barack Obama, but listening to these stump speeches and watching the Democratic debates, he is a country mile farther to the center than either Sanders or Clinton.
This election also includes the “swing” factor—the amount of Republican seats up for grabs (24) dwarfs the 10 the Democrats have to defend. There is only a four-seat majority that Republicans are likely to lose and thus hand the Senate back to the Democrats.
But beyond a very risky and potentially gut-wrenching political gamble, it is the duty of the Senate must hold hearings on an Obama nominee. Cease this childish and unconstitutional wining and do your job.
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James Campion is the Managing Editor of The Reality Check News & Information Desk and the author of “Deep Tank Jersey”, “Fear No Art”, “Trailing Jesus”, “Midnight For Cinderella” and “Y”. and his new book, “Shout It Out Loud—The Story of KISS’s Destroyer and the Making of an American Icon”.