By stonewalling the president and ignoring the clear intent of the Constitution, Senate Republicans have turned America into a nation of men, not of laws.
Their flat refusal to play any part in the traditional “advice and consent” role assigned to the Senate in the Supreme Court appointment process is much more than simply another deliberate thumb in President Obama’s eye. It is the trashing of American history and admission that they are incapable of governing in the ethos of the Founding Fathers whose words they toss around with great facility and greater cynicism.
Senate Majority Leader Mitch McConnell, R-Ky., keeps saying that “the American people should have a voice in the selection of their next Supreme Court justice,” but neglects to indicate which part of the Constitution so declares. And, incredibly, he contends that any Obama nomination, not the shutdown itself, would be the cause of a “bitter struggle. ”
The long history of Supreme Court appointments is already complex and bipartisanly bitter. There are no clean hands leaving fingerprints on the record. Members of both parties have been consistently guilty of inconsistency, rationalization and hypocrisy, and today’s incumbents exhibit short and selective memories about their predecessors’ deeds and misdeeds.
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The primary change in appointment dynamics over the years has been the steady erosion of any pretense that the process is about protecting judicial independence and ensuring fairness, which is what the Constitution contemplates.
The 1969 struggle over a successor to Justice Abe Fortas illustrates the early twilight of such pretensions. Richard Nixon nominated Clement Haynsworth, chief judge of the 4th U.S. Circuit Court of Appeals, which handled many school desegregation cases and, in the opinion of liberals, decided them wrongly.
But in the ’60s, publicly grilling nominees about their rulings, past or future, was still considered off-limits, so the liberal opposition built a case that Haynsworth had participated in several decisions involving companies in which he held stock. Led by then-Sens. Birch Bayh and Ted Kennedy, they had no direct proof of wrongdoing, so were quick to say they did not think Haynsworth was corrupt but argued that even the appearance of a conflict of interest disqualified him.
The subtextual reality was that Haynsworth was simply too conservative, and the largely trumped-up stock dispute gave cover to enough senators, including 17 Republicans, to reject Haynsworth, 55-45.
But that wasn’t the end of the duplicity. Nixon then nominated G. Harrold Carswell of Florida, reportedly remarking, “If they didn’t like Haynsworth, wait’ll they see Carswell,” who had a reputation as a white supremacist during his early political days and whose reversal rate as a federal district judge was a dismal 58 percent. He, too, went down, 51-45.
In the more than four decades since, the process has morphed into both sides openly grilling nominees about key cases and issues and, in the process, making clear that ideological constancy is a greater value than judicial fairness and temperament.
But at least those battles actually took place and people could judge the nominating presidents, the advice-and-consent senators and the nominees themselves. By shutting down the process altogether, Republicans, far from making Americans part of it, are ignoring them as well as the intent of the Constitution.
Davis Merritt, a Wichita journalist and author, can be reached at firstname.lastname@example.org.