It’s time to Break It Down!
Last week I discussed the stark reversal of course by some GOP lawmakers and their expectations for Sally Yates performance as a member of the Justice Department staff. In summation, when GOP Senators questioned Ms. Yates during her confirmation hearings for the post of Deputy Attorney General, Jeff Sessions asked her a number of pointed questions that clearly framed his expectations that should she be confirmed, she would oppose any rules, regulations, or executive orders that President Obama, a Democrat, proposed, if she thought they not consistent with either the law or the Constitution. As fate would have it, after Mr. Obama left office, Yates was asked to serve as interim Attorney General until the new AG is confirmed.
So guess what happened. The new GOP President issued an executive order that Ms. Yates did not believe complied with some elements of the Constitution. She then proceeded to do, as she said she would during her confirmation; stood on principal and refused to ask Justice Department staff attorneys to defend the Executive Order, regardless of whether it’s a ban or a pause. The administration of course, promised a Muslim ban. It was even described that way by the administration…until it wasn’t. At any rate, not surprisingly, the administration fired Yates.
Interestingly enough, U.S. District Court Judge James Robart, a Bush appointee, ruled in favor of Washington Attorney General Bob Ferguson, who sued to invalidate key provisions of the executive order. That fight continues as the 9th Circuit Court of Appeals three-judge panel heard arguments from both sides in an hour-long conference call at 3:00 p.m. PST yesterday.
The degree to which the GOP’s sense of holding the opposition’s feet squarely to the fire, while having no such affinity to be held to the same standard did not stop there. The GOP is now promoting its Party’s nominee for the Supreme Court. In doing so, the Grand Old Party, collectively, has been quite salty about what it views as Democrats’ attempt to obstruct, deny, or even delay the confirmation of the next Justice-in-waiting.
The most readily at hand reference for comparison sake for most people may be the fact that the GOP refused to even grant interviews to Merrick Garland, the last Obama nominee for the High Court. Justice Antonin Scalia’s died in February 2016. In March of that year, President Obama nominated Garland as an Associate Justice for the SCOTUS. Republicans not only refused to hold hearings to consider his confirmation, they declined to even grant him individual interviews, which is a courtesy commonly extended to candidates for the High Court.
As if that were not bad enough, the disdain, disparagement, and disregard did not end there. Late in last year’s electoral season, when it appeared that Hillary Clinton might win the Presidential election, Senator John McCain exclaimed:
“I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up,”
After making those comments, Senator McCain appeared to up the ante, suggesting that if Hillary Clinton were elected, Republicans would block any Supreme Court nomination she would make. Ever!
Hark, there’s more. CNN reported on private remarks made by North Carolina Senator Richard Burr, who was running for reelection. According to the cable network, he said:
“There will be no lame-duck confirmation, and if Hillary Clinton becomes president, I am going to do everything I can do to make sure four years from now, we still got an opening on the Supreme Court.”
That sentiment aligned him perfectly with another conservative Senator, Ted Cruz, who told Dave Weigel:
“There is certainly long historical precedent for a Supreme Court with fewer justices. I would note, just recently, that Justice Breyer observed that the vacancy is not impacting the ability of the court to do its job. That’s a debate that we are going to have.”
And there’s more still. There was also support for the argument among conservative intellectuals. Manu Raju noted in a CNN story on November 1, 2016:
“Ilya Shapiro argues in The Federalist that the Senate should block any Clinton nominees, saying the Constitution allows it. Michael Stokes Paulsen writes in National Review that the Court should be reduced from nine to six justices. While he supports a legal change in the future, Paulsen says attrition by refusing to confirm would be a good way to get down to six.”
Technically, Shapiro is correct…as far as it goes. While there is no explicit, affirmative obligation to confirm, refusing to confirm is hardly conservative. In fact, it’s deeply anti-conservative, in the small-c sense of following norms and customs, as laid out by the Constitution, and according to precedent.
In short, the tacit implication of the arguments made by Senators McCain, Cruz and Burr’ is that Democratic presidents—whether Obama or, hypothetically, Clinton—are less legitimate than Republican presidents, who clearly should be allowed to make appointments on the Supreme Court. The essential motivation even though unstated, is just as clear—ideological disagreement—but there is no longer any reasonable argument, not even a pretense, of respecting the notion that Democrats ever have a mandate. It’s the only logical end, and in fact inescapable conclusion to the increasing politicization of the court-nomination process.
To that end, I simply cannot close without noting that while all the noise registered by Republicans may indeed be buttressed by their current numerical advantages, as they control the executive branch, the legislative branch, and they are poised to gain sway in the judicial branch, it’s time to drop the veil of phantasmical assertion that Democrats somehow are breaking new ground in their effort to at least offer a modicum of resistance to the Borg-like power sweep that the GOP is executing. In other words, welcome to…“Irony Part II: McCain, Cruz, Burr, et. al. Speak on Blocking Any and All Clinton SCOTUS Nominations.”
I’m done; holla back!
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