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Scalia’s death, the GOP debate and the hooey that’s followed

In Saturday’s childish debate, Republican candidates try to sell the idea that there is a “rule” against confirming Supreme Court appointments of “lame-duck” presidents.

Senate Majority Leader Mitch McConnell said within hours of Justice Antonin Scalia’s death that the Senate would not confirm anyone Obama nominates.
REUTERS/Kevin Lamarque

This is my post about Saturday night’s Republican presidential debate in Greenville, S.C., but it will mostly deal with the bigger story, which took up the first part of the debate, namely the Supreme Court vacancy created by the sudden death of Justice Antonin Scalia.

First, to dispense with the debate in general, my favorite quote came from John Kasich in which he responded, not to the question he had been asked, but to the entire debate up to that point and perhaps the entire Republican race. It went like this:

Moderator JOHN DICKERSON: Governor Kasich, please weigh in.

KASICH: I’ve got to tell you, this is just crazy, huh? (Audience laughter.) This is just nutso, OK? Jeez, oh, man. I’m sorry, John.

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Kasich wasn’t really sorry. He was seeking the support — politically, and perhaps emotionally as well — of Republicans who see the race thus far as a clown-car comedy routine in which Kasich had been assigned the role of the straight man.

The “nutso” remark immediately followed a passage during which Donald Trump and Jeb Bush went off the rails and The Donald recommended that former First Lady Barbara Bush — the ol’ Silver Fox herself — take her son Jeb’s place in the Republican presidential field.

Scalia vacancy

But, of course, the debate started with the Scalia death and the Supreme Court vacancy it creates. The discussion was — and will remain for the foreseeable future — full of utter hooey.

The currently fashionable flavor of hooey being sold by Republicans is that some kind of unwritten rule either prohibits presidents late in their last term from nominating justices or requires the Senate to ignore such “lame-duck” nominations. You will hear a lot of future rubbish about such an unwritten rule, so sketchy that even the smart and usually precise Ted Cruz got caught misstating the “rule” Saturday night.

Hooey aside, I believe this to be the situation: Republicans are not going to confirm anyone that Barack Obama nominates to replace Scalia. They have the votes to block any nominee and little incentive to approve one, other than an amorphous sense that they are messing with the U.S. Constitution.

Senate Majority Leader Mitch McConnell said within hours of Scalia’s death that the Senate would not confirm anyone Obama nominates. That is unprecedented, but his right to say so is covered by the First Amendment.

Republicans would prefer that Obama surrender in advance and decline to nominate anyone. He has indicated that he will not take that route, but will nominate someone promptly. There is some talk, including from Sen. Marco Rubio, that if Obama insists on nominating someone, the Senate is under no obligation to even hold hearings on the nomination, let alone allow it come to a vote. As a technical matter, I believe that’s true, too. Congress’ power is to “advise and consent” in the appointment of justices, but clearly they can decline to consent.

There’s a lot of speculation as to whom Obama might nominate and whether there might be someone who could actually get confirmed. Personally, I feel confident Obama will not nominate anyone the Republican-controlled Senate would want to confirm and the Senate will not confirm anyone he might nominate. I hope I’m wrong. If I’m right, our nation’s mythic “system” will be confronting some long-denied realities.

I also feel that something like this situation is the new normal where Supreme Court nominations are concerned. The idea that Supreme Court nominations — or Supreme Court rulings for that matter — exist on a non-political plane is over. Not all, but many Supreme Court cases are and will remain the continuation of partisan policy battles. Whichever side has been unable to win through the elected branches will try to win via the supposedly non-political judicial branch.

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And by the way, lest my analysis become overly partisan on this issue, Democratic presidential candidate Sen. Bernie Sanders of Vermont has taken to saying, as part of his standard stump speech, that he will not nominate anyone to the Supreme Court who is not committed to overturning the 2010 Supreme Court ruling in Citizens United vs. The Federal Election Commission, the case that gave rise to the super-PAC phenomenon. I do not recall any previous case of a presidential candidate openly acknowledging that he would require such a commitment — or any commitment to rule a particular way on a particular matter — from a potential Supreme Court nominee. The Constitution doesn’t literally prohibit a presidential candidate from demanding such a commitment, but in openly doing so, Sanders is messing with some powerful myths.

This may or may not become the new normal. It is both troubling on one level and admirably candid on another if, like me, you assume that the Sanders heresy has been practiced by presidents in recent Supreme Court vacancies, just not so openly.

Nominations to the Supreme Court have already become partisan battles. In the old days, when the myth of an apolitical court was in full bloom, justices were often confirmed by overwhelming margins, or even in a huge portion of cases, by an unrecorded voice vote of senators just shouting “aye.”

By contrast, the most recent Obama appointee — Elena Kagan — was confirmed by 63-37. Break that down by party and you’ll find that every Democrat voted in favor. Republicans voted against by 37-5. Of the five Republicans who clung to the old tradition of voting aye unless there was something corrupt about the nominee, three are now gone.

The last Republican nominee to be confirmed, Bush nominee Samuel Alito in 2006, got the same treatment in reverse, getting an aye vote from every Republican but just four from Democrats.

As this becomes ever more clear, it threatens something deeper in our system.

Years ago, I wrote a series for the Strib that later became a book titled “Our Constitution: The Myth that Binds Us.” It argued that a great deal of what we are all taught and believe about our constitutional system is more myth than reality. But as long as we all believe in the myth, that belief binds us together and provides a slightly magical way of getting us peacefully through national crises, believing in the Constitution like some believe in their bibles.

One of the key props of the myth was the notion that the Supreme Court provided a relatively non-political, non-partisan means of resolving big disputes without tearing apart the fabric of the nation. The unanimous 1974 Supreme Court ruling that ordered President Richard Nixon to hand over the Watergate tapes was then the apotheosis of that myth-based system. Three justices whom Nixon had appointed joined in that ruling. Nixon felt he had no option other than to obey, even though it led to his resignation. 1974 is just 42 years ago.

I’m afraid I don’t believe that would happen today. I don’t know what would happen instead, but it would be more partisan and divisive.

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Saturday night’s debate

Here’s a quick recap of the discussion of what should happen in the wake of Scalia’s death, as it played out on the Republican debate stage Saturday night.

Moderator Dickerson said that he understood that Donald Trump has said that Obama shouldn’t make a nomination, but he challenged Trump to say whether he would do the same if he had a chance to appoint a justice in the last year of his term, and wouldn’t it be “an abdication to conservatives in particular not to name a conservative justice with the rest of your term?”

Trump (who, you have to admit, is harder to predict than any of the others) totally crossed him up, thus: “If I were President now I would certainly want to try and nominate a justice. I’m sure that, frankly, I’m absolutely sure that President Obama will try and do it. I hope that our Senate is going to be able — Mitch, and the entire group, is going to be able to do something about it.”

This was actually candid and not the particular brand of hooey Dickerson expected, so he followed up:

DICKERSON: So, just to be clear on this Mr. Trump, you’re OK with the president nominating somebody?

TRUMP: (Again with admirable candor): I think he’s going to do it whether or I’m OK with it or not. I think it’s up to Mitch McConnell and everybody else to stop it. It’s called delay, delay, delay.

Dr. Ben Carson agreed that Republicans should do whatever is necessary to prevent Obama from filling the vacancy.

Bush was asked whether — like Sanders on Citizens United — he would have any litmus test that he would require a potential Supreme Court justice to pass before Bush would nominate him. He said no litmus test. That’s from the old-school playbook.

Rubio was the first to bring up the specific bit of hooey I referred to above, the idea that there is an unwritten rule against the Senate confirming the Supreme Court appointments of “lame-duck” presidents. Rubio says this rule has been in place for at least 80 years.

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The definition of a “lame duck,” for this purpose, is a president who cannot run for another term, which would actually refer to any president in his second term. And lots of presidents have successfully filled second-term vacancies, but for the purpose of this particular rule, it refers to a president in the last year of his second term.

Cruz also cited the “80 years of precedent of not confirming Supreme Court justices in an election year.”

Cruz misspoke, as I mentioned above. Justice Anthony Kennedy — the last of the Reagan appointees — was confirmed in early 1988, the last year of Reagan’s second term. But he was nominated in late 1987. And Cruz can blame the Dems for that one because the seat Kennedy filled — replacing Lewis Powell — was first supposed to have been filled by Robert Bork, whose controversial nomination was stalled and then voted down on a heavily party-line vote in mid-1987.

But the real hooey-ness problem with the “lame-duck rule” is that its current promoters basically can’t point to the cases of vacancies that occurred in the eighth year of a presidency but were not filled because either the president or the Congress invoked the “rule.”

That’s a pretty big problem for those claiming such a “rule” exists. The closest they can come is one instance, in 1968, which doesn’t involve filling an actual vacancy on the court. Chief Justice Earl Warren wanted to retire. President Lyndon Johnson wanted to elevate his crony Abe Fortas, who was already on the Supreme Court, to the chief’s slot. Fortas’ nomination never got a vote in the Senate. But he also had scandal issues that forced him to resign from the court soon after. And that flawed case seems to be the only specific instance that all these rule-of-thumbers can point to. It just turns out that you don’t have vacancies occurring during the eighth year of a two-term president that went unfilled. That’s because the vacancies didn’t occur.

The next new normal

There’s something else you should know for the long-term on this issue, although it doesn’t have much effect in the current situation because the Republicans control the Senate and the president is a Democrat.

It takes 60 votes in the Senate to break a filibuster. The filibuster rule was recently revised so that many nominations cannot be filibustered, including judicial appointments, but with one exception. Confirmation votes for nominees to the Supreme Court can still be filibustered, and it takes 60 votes to break such a filibuster. The current Senate has 54 Republicans. In the event that Obama’s nominees gets to the floor, it could theoretically be filibustered, and Sen. Cruz said on ABC Sunday that he would surely do so if it came to that. But the chances of that seem remote because McConnell is basically pledged not to allow any such nomination to get that far.

But if what is happening now becomes the new normal (which is what I expect unless we somehow rediscover compromise) and if both parties are equally committed to preventing the other party’s president from successfully appointing Supreme Court justices, we could — realistically, I think — be heading for a time when Supreme Court vacancies cannot be filled unless one party holds both the presidency and a 60-vote majority in the Senate.

That situation — the Dems held the White House and exactly 60 votes in the Senate — occurred briefly from mid-2009 (because of the long Minnesota recount) until early 2010, when Ted Kennedy died and was replaced by Republican Scott Brown. But the frequency of either party controlling the whole show with a filibuster-proof majority is a rarity in recent history.

I can’t see the future, but it is at least credible to contemplate a future when the court shrinks as the circumstances for confirming any new members becomes rare.

The Constitution, by the way, does not fix a number of justices necessary for the court to rule.

Correction: An earlier version of this article incorrectly stated that Justice Lewis Powell was a Minnesotan and that President Johnson nominated Abe Fortas to replace a retiring Warren Burger as chief justice. Fortas was nominated to replace Earl Warren.