Tuesday, February 16, 2016

Here's Why Mitch McConnell's Blanket Rejection of all SCOTUS Nominees is such a Dangerous Gamble

by Nomad

The decision by Senate Majority Leader McConnell to block each and every nominee submitted by President Obama could be a very dangerous misjudgment with devastating consequences in November. 

Leader of the Majority in the Senate Mitch McConnell's announcement to stall any SCOTUS candidate President Obama put forward came hours after the news of Justice Scalia's death. McConnell claimed that the matter could not too important to be decided in an election year.
Under McConnell's order, anybody nominated by President Barack will not succeed Justice Antonin Scalia. The confirmation process will be stalled until nearly a year from now after a new president is sworn in. As reported by USAToday, Mcconnell said:
"The American people‎ should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President." 
Democrats pointed out that the American people already had a voice in the selection. It was called the Senate. Their representatives in Congress- democratically-elected- have been designated by the Constitution to act as a Vox populi. Surely McConnell knows his own job description.

Although he tried to make the case that holding a SCOTUS confirmation hearing was unprecedented, that argument was quickly shredded by the historical facts. Uncommon, perhaps but such things have happened in the past.
The most recent occurring during Reagan's term. In 1988, Democrat-controlled Senate confirmed Reagan’s second-choice nominee Anthony Kennedy 97-0. And Kennedy sits on the bench to this day and must have laughed a big guffaw when he heard what the Kentucky senator said.
Another source points out more hypocrisy:
Indeed, Justice Kennedy’s confirmation included “yea” votes from Mitch McConnell and Chuck Grassley of Iowa, the Senate Judiciary Committee Chairman, who will oversee the incoming confirmation process.
Perhaps forgetful of his own voting record, Sen. Grassley said on Saturday:
“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.”
If that wasn't bad enough, Scalia himself was confirmed on September 17th, 1986, just 48 days before Election Day. The Democrats who controled the Senate didn't announce a halt to the process and certainly no demand that Reagan wait until a new president was elected and sworn in. He was in fact confirmed 98–0.
*   *   *
Most people saw that McConnell's statement was simply another example of Republican obstructionism. It is hard to deny otherwise.
So hard in fact that even in the heart of the Far Right, Texas, McConnell's rejection - which has been supported by a few of the GOP candidates- was considered a poorly thought-out idea. 

In the Dallas Morning News, an op-ed piece points out that the course of action McConnell is proposing is nothing less than a dereliction of duty by Congress. It is the president's job to put forward a name for consideration, and it is the Senates's responsibility to process this candidate and to make a decision. The Senate- like the rest of us- has a job to do and it gets very well-paid for that job.
In addition, it is a very unwise thing to do.
To begin with, this is chancy politics. Senate Republicans should use their current leverage to push Obama to make a more centrist choice for the seat. McConnell’s path surrenders that leverage and renders the seat just another spoil for whichever party wins in November.
McConnell's argument that such things are just not done is false. In fact, what is not done is precisely what McConnell has proposed. In US history, no president of either party has refused to carry out his responsibility of nominating a SCOTUS successor. And, more importantly, until this moment, the Senate has never simply refused to even consider a nomination, not with so much time left in the outgoing president's term. 

The Dallas News editorial urged the Senate to do its duty as prescribed by the Constitution, just like every other Senate has done before this one. The Republican senators do not need to be afraid. They are in no way mandated to act as the president's rubber stampers. 
As the op-ed writer put it:
The president nominates. The Senate deliberates.

Editorial: McConnell's promise to reject Obama's nominee sight unseen is bad politics and terrible judgment

For as long as there's been a Supreme Court, it's been the job of the president - and only the president - to put forward a candidate to fill any vacancy on its bench. For just as long, it has been the Senate's job to decide whether to seat that person.

A Pattern of Needless Obstruction
McConnell's excuse about election year politics is also undermined by the fact that throughout Obama's time in office, Congress has conducted a campaign of blocking any and all nominees. Not rejecting them, mind you, but preventing the confirmation process altogether. There are any number of legitimate grounds for rejecting unsuitable candidates. There's no possible rationalization for not allowing the Senate to debate the issue. 
Of course, if there was any doubt that McConnell's announcement had nothing whatsoever to do with the election, then a quick review will expose the lie.

Last year, for example, the Republican senator from Arkansas Tom Cotton was proud about having stalled the confirmation of ambassadorial nominees to Sweden, Norway, and the Bahamas. As Politico reported in October:
It's not just Cotton holding up nominations. Republican senators such as Ted Cruz, John McCain and Chuck Grassley are deploying the tactic at an unprecedented level in their ongoing war with the White House. Right now, eight ambassadorial nominees are waiting on the Senate floor to be confirmed, and more than 100 other nominations are languishing in committee.
And a couple of months later, Politico provided more evidence of pointless Senatorial obstruction of Obama's nominations:
Nineteen potential judges, a half-dozen ambassadors, a terrorism financing specialist and two high-ranking State Department nominees are awaiting confirmation votes on the Senate floor, a backlog that has this GOP-led Senate on track for the lowest number of confirmations in 30 years. The Senate Banking Committee hasn’t moved on a single nominee all year.
So, let's just cut out this talk of the election year considerations. The pattern was established by the Republicans the moment Obama took office.

McConnell's Folly
It is a sizable gamble for the Republican party in several ways. As the Dallas Morning News points out:
McConnell is right about the stakes. The nation is sharply divided. This choice could determine the court’s leanings for years. As a result, Senate Republicans should insist Scalia’s replacement not be a “legal extremist” or fall outside the mainstream.
Clearly he is betting the reputation of Senate and the future of the overall ideology of the SCOTUS on the likelihood that Republicans will maintain control of the Senate and that the next president will be a member of that party. Only both of those outcomes combined will allow anything close to the results conservatives would consider ideal. 

If the Senate falls to the Dems. a Republican president could face rejection after rejection, especially after the GOP has set such a perfect precedent. If a Dem is elected president, and the Republicans retain control of the Senate, then they will never be able to continue this obstructionism for the next four to eight years without some degree of blow-back. 

Should the next president be a Democrat, McConnell and the ultra conservatives will have to find new excuses and, by that time, the patience of the American public will- understandably- be exhausted. Particularly when you consider the caliber of candidates the Republicans in the presidential race. 

There are, in fact, so many possible scenarios at play at the moment it is hard to calculate how it will all turn out. Suffice to say, there is a lot of risks for the GOP. So, the If-then game- while fun to play for the Left- should horrify the Republican establishment. 

Let's say, Trump withdraws from the Republican Party, the party could be irreconcilably split, leading to an election loss in November. The chances that Trump will be able to ride into the White House are slim but the chances that he will spoil any chance for a Republican win are rather high. 
That's not good news for the GOP. But that's only part one.

If Trump carries out his threat to sue Ted Cruz on the question of the candidate's eligibility, the legal question of his standing in the matter might well have to be decided by a Supreme Court ruling. 
You'll have a constitutional law expert how they could decide. However, a split vote in the SCOTUS along partisan lines  is always a possibility. What happens next in this case is unknown territory. Clearly the nation needs a fully-functioning judicial arbitrator to prevent a major crisis. 

In that horrific event, the Republican party could, in theory, be left with a nominee whose legitimacy cannot be resolved satisfactorily until a new SCOTUS judge is confirmed. What a mess that would be. 
Nicely ironic/karmic too, since Ted Cruz is one of the candidates who came out in favor of McConnell's rejection.  

In effect, the Majority Leader of the Senate is throwing those dice and if they do not tumble lucky-sevens, then the outcome could be devastating for Republicans. 
There's also another question: how long will the American public put up with this tantrum? After all, unlike so many past events, it's difficult to find a way to blame Obama for this.

Ignoring the Warning Bells
With an approval rating at historic lows, Americans are already fed up with Congress. 
A Gallup poll last month showed that a full 80% of the American public disapproves of Congress's handling of issues. Nearly half of all those polled think that their representative in Congress is "out of touch with the average citizen. 
When asked whether how much confidence they had in Congress, a full 48% said "very little" and another 37% said "some."

At the same time, rather surprisingly 43% of the respondents said that between Obama and the Republicans, said that the GOP had more influence over the direction of the nation. 
The wording is a bit tricky and leaves room for some varying interpretations. However, one poll question is clearer.  It's really the million dollar question. The one that McConnell should have considered before he made his reflexive blanket rejection of all things Obama.

That question was:
Do you approve or disapprove of the way the Republicans in Congress are handling their job? 
The response was overwhelming and categorical. A staggering 71% of those asked stated that they disapproved. And only 23% approved. Any attempt to spin these results is an exercise in futility. 
It should be a warning bell for the Republican Party, Cassandras ought to be coming out of the woodwork but, so far there, there is only silence. 

That's not only a Republican-dominated Congress bit one in which should be as stridently conservative as possible. The Tea Party claimed the mid-term victories. Those were the people that so many delusional Tea Party voters banked so much hope on. They made so many promises. And in the end, things have never been worse.

So it's no exaggeration to say that this issue could be the last straw. The prospect of losing control of the Senate means that McConnell's gamble would allow the president to effectively stack the deck with ideological extremists. All because the Republicans in the Senate refused to do its constitutional duties. 

With his blanket rejection, Senator McConnell has already painted the Republicans- once again- into a corner they cannot escape from without some degree of humiliation. (It's becoming a habit.) That distress and embarrassment will continue to grow as the interval of high court paralysis stretch on and on. 
The op-ed piece advises a more thoughtful and less knee-jerk approach.
The far wiser, and only responsible, course is to for Senators to hold their hearings, study Obama’s choice and then all members, liberal or conservative, cast a vote they can defend.
The problem for McConnell and the others is that they cannot defend their ideas, which are largely based on an unreasoning hatred for the president. They also cannot compromise and they are, as the American public may soon come to understand, completely unfit to hold their positions.