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A system under strain: GOP’s treatment of Garland and Dems’ blue slips underscore hyperpartisan times

Our constitutional system is leaking fluid. The Framers’ design is not as infallible as the mythical one we were raised to worship.

Judge Merrick Garland being nominated to the U.S. Supreme Court, in the White House Rose Garden on Wednesday, March 16, 2016.
REUTERS/Kevin Lamarque

On Friday, the day after I expressed some views about Sen. Al Franken’s decision to block the confirmation of Justice David Stras to a federal appellate court appointment, the Strib weighed in with an editorial calling Franken’s decision “ignoble.”

Online dictionary: “Ignoble: of low character, aims, etc.; mean; base; of low grade or quality; inferior.”

In my piece, I mainly said that anyone who discusses Franken’s decision to block Stras without considering the context of Senate Republicans’ successful blockage of President Barack Obama’s nomination of Merrick Garland to the Supreme Court, without granting him even a hearing, is not being straight.

To their credit, the Strib editorial did mention Garland. It said that “the sharp-elbows partisanship that drove Republican decisions in the Garland and Gorsuch matters helps explain Franken’s decision. But it doesn’t justify it.”

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But the Strib didn’t discuss what it means by “doesn’t justify.” Or, perhaps to be specific, didn’t suggest what an appropriate response by Franken or other Democrats to the Garland matter would be, other than, perhaps, to decry “sharp-elbows partisanship,” but go ahead ignoring partisanship as Republicans continue to pack the court with lifetime appointments to young conservatives.

Franken, I should note, did not mention Garland in explaining his decision to block Stras. I have assumed that this was an important part of the background of his decision, and I still assume it. But I should and will seek his comment on that.

Over the weekend, you may have noticed, the two Democratic senators from Oregon also announced that they would withhold their “blue slips” and block the nomination of Ryan Bounds, another young (age 44) conservative to a vacancy on the federal appellate court.

Sens. Ron Wyden and Jeff Merkley (both D-Oregon) likewise didn’t say they were retaliating for Garland. They cited an Oregon tradition, saying Bounds had not been approved by Oregon’s bipartisan judicial selection committee. That’s apparently true and provides some additional rationale for their move, although I will continue to believe it was at least partially inspired by the Garland matter.

My main point, last week and today, was that this is all part of a breakdown of norms that are changing and will change our system. The Constitution says nothing on this topic except that Congress will decide how many federal courts to have and the president will nominate the judges, for lifetime gigs, subject to congressional confirmation. There are now some federal laws on the subject but they don’t affect the interplay between the president and Congress on these matters.

The “blue slip” business is nothing but a Senate practice, which the Senate controls entirely. It used to be a big deal to change the Senate rules and norms, but that has broken down.

Under that rule, Franken and the Oregonians are within their privileges as senators to block a nominee from their state, but if the Democrats keep doing it, I don’t much doubt that the Republicans will change the rule and, if they do, they will do it on a party-line vote. That is becoming the new normal. Perhaps the blue slip is so valuable to senators that they won’t abolish it, or they will work out a compromise.

For the record, my view is that if what Franken did on Stras was “ignoble” it pales in ignobility compared to what the Republicans did on Garland and must be discussed in that context.

And my larger view is that our constitutional system is leaking fluid. The Framers’ design is not as brilliant as the mythical one we were raised to worship. It was written by men who, through no fault of their own, did not envision national political parties that could behave in the way that our parties are behaving. It doesn’t even specify that the Supreme Court can strike down laws of Congress. Many of its features (the Electoral College would be a good example) function in ways they never intended and couldn’t have envisioned. It is held together nowadays by laws and rules and norms that came after, but those are breaking down.

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I’m not predicting the apocalypse. The whole system is under tremendous strain and the hyperpartisanship of the moment is one the biggest sources of that strain.