Friday, March 25, 2016

The Garland Waves Are Crashing Against Mitch McConnell's Wall

by JASmius

Mitchie the Kid has drawn his line - "This far, NO further!" - and he's standing stoutly behind it, because he's given him and his Senate majority no choice.

But Barack Obama, public opinion, and another defecting member of his caucus, are chipping away at the wall's foundations.

Let's take The One first:

Barack Obama says Republicans' refusal to consider his Supreme Court nominee will threaten the integrity of the justice system and prove that the judicial nomination process is "beyond repair." [emphasis added]

Wow.  It's not like President Cool to get so risibly hysterical.  Perhaps it wouldn't be so laughable if it wasn't coming from (1) a POTUS who's already gotten two nominees on Olympus, with more than a few (ill-advised) GOP votes, and (2) the head of a party which itself "broke" the judicial nomination process almost thirty years ago when they flagrantly assassinated the character of the late Judge Robert Bork (adding a new verb to our political lexicon), did not do so in a presidential election year, threatened the last two Republican presidents with just that if they made election-year SCOTUS appointments (Joe Biden in 1992, Chucky Schumer in 2008), and operated their own blockade of George W. Bush's appellate-level nominees for the six years it took them to retake the Senate.

It's your party that "broke" the judicial nomination process by hyperpoliticizing it as well as "fundamentally transforming" the SCOTUS into an unelected, lifetime-appointed oligarchy, Barry.  "Physician, heal thyself" is an expression that comes to mind.

In an op-ed in the Houston Chronicle, Obama says the fight is bigger than "a single election."

Given that Garland would tip the High Court left for a generation or more, he's right about that much.

He argues that the election-year blockade could make it impossible for future presidents to install judges on the court.

Only if the Constitution is amended to reduce presidential terms to a single year's duration.  Wouldn't that make us all just rapturously happy?

Feel free to de-escalate this process - i.e. back down - at any time, Barry.

He says that would "betray the vision of our founding."

Oh, God.

Here's Article II, Section 2 again:

[The president] shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law.... [emphases added]

The "vision of the founding" was that presidents could not install Supreme Court Justices without the States' permission (via Senate "consent").  "Consent" means the Senate has the power and authority to tell the president "no".  And nowhere in this passage or the entire document or any of its twenty-seven Amendments does it say that how the Senate must issue its rejection.  Which means the Senate is free to hold hearings and bottle up a SCOTUS nomination in the Judiciary Committee, or they can pass it out to the full Senate and vote him/her down, or they can simply never take up the nomination at all.  A constitutional authority of which Democrats would be loudly reminding We the People daily if it was President Romney appointing a Ted Cruz-clone and Harry (G)Reid manning the blockade line.

The check on this Senate power is We the People.  If the public turns against the Senate nomination blockade, they could, pre-Seventeenth Amendment, vote for State legislators who would recall their obstructionist senators, and these days directly vote them out.  Or if the public supports said embargo, keep them in office, and even elect a president that will nominate a Justice that will win confirmation from them.

If this CNN/ORC poll can be believed, Senate Republicans are in (redundant, given the Trump ascendancy) deep doo-doo:

Two-thirds of Americans want confirmation hearings held for Judge Merrick Garland, Barack Obama's nominee to fill the open Supreme Court seat left vacant by the death of Justice Antonin Scalia, and most also say the Senate should confirm him, a new CNN/ORC poll finds.

According the survey, conducted by telephone March 17-20 among a random national sample of 1,001 adults: 
52% favor confirmation, 33% oppose....

The poll also found that most Republicans disagree with Senate Majority Leader Mitch McConnell's statements saying the Senate will not hold confirmation hearings for Garland:

55% say the Senate should hold hearings....

And most say the choice should rest with Obama and not his successor:

57% say it should be Obama's choice; 58% say senators are not justified in voting against Garland for that reason. [emphases added]

The factor that the poll doesn't weigh is how big an issue this is for respondents who oppose McConnell's anti-Garland blockade.  Do they feel strongly enough about it for their votes to turn on it in November, or is it just an intellectual exercise?  Although that majority of Republican respondents arguing for hearings now is kind of hard to overlook.  But given that the likely Trump nomination will mow down congressional Republicans like a scythe anyway from his "brand" having supplanted theirs, that itself is an academic question.  Which probably helps explains why Senator McConnell is sticking to his guns - he knows, in other words, that he's got nothing to lose by making a heroic last stand.  Better late than never, right Tea Partiers?

Kansas Republican Jerry Moran does not, however, agree:

Republican Kansas Senator Jerry Moran says the Senate should hold hearings on Barack Obama's Supreme Court nomination – a position contrary to his party's leadership.

"I would rather have you (constituents) complaining to me that I voted wrong on nominating somebody than saying I'm not doing my job," Moran said Monday during a town hall meeting, according to a report in the Garden City Telegram.

"I can't imagine the president has or will nominate somebody that meets my criteria, but I have my job to do," Moran said. "I think the process ought to go forward."

Senator Moran clearly has an incomplete understanding of his job description and that it provides him much greater leeway than just "following the president's orders".  "Separation of powers" ring a bell, there, Jerry?

The number of GOP defectors is still only a handful, but if it gets big enough - which it may well do once the general campaign is in full furor this summer and all twenty-four Pachyderms up for re-election start staring into the abyss - let's just say that Mitchie the Kid's mettle may be in for the mother of all tests.

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