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A Dangerous Road

By Sheila Kennedy on March 4, 2016 in Civic Blog
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Yesterday, I was supposed to speak at an event sponsored by Organizing for America, focused on the battle over Antonin Scalia’s replacement on the Supreme Court. Instead, of course, I was in the hospital. Since I hate to let a speech go to waste, here are the remarks I had planned to make.

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The refusal by Senate Republicans to even consider a nominee is dangerous for two reasons. The first reason, obviously, is the need to have a full complement of Justices who will hear and deliberate over the important cases that come before the highest court in the land.

The second reason, however, worries me even more, because the absolutely unprecedented position being taken by Mitch McConnell, Chuck Grassley and the other Senate Republicans represents yet another ratcheting up of the obstruction tactics that the Party of No has engaged in ever since President Obama took office.

This is not the way our system is supposed to work. We don’t elect people so that we can watch them not only refuse to do their jobs but actively throw sand in the gears of government.

Let’s look at what is at stake.

Republicans in the Senate are refusing to participate in the Constitutionally-required process of “advice and consent.” Their argument is that because this is an election year, and the President is in the last year of his tenure, he shouldn’t get to nominate Scalia’s successor.

Of course, that argument ignores the Constitution, which these partisans claim to revere. So much for “strict construction.” But it fails on other grounds as well:

  • Historically, the longest stretch of time between a nomination and a vote has been 125 days. Over 330 days remain in Obama’s term of office.
  • There is absolutely no precedent for this refusal to follow the Constitution. Between 1796 and 1988, at least 14 Justices have been confirmed during election years.

According to legal historians, Senate Republicans would have to reach back to the mid-1800s to find an instance in which the Senate blocked a nominee for reasons having nothing to do with the individual who’d been nominated—that is, just to obstruct the sitting President. And even then, they rejected a particular nominee—they didn’t refuse to consider any.

The Republicans’ behavior is thus a repudiation of both the Constitutional separation of powers and the Constitution’s definition of a Presidential term. If they persist, the Supreme Court will have a vacancy for over a year, and will operate in the interim with only 8 Justices. If the Court splits 4-4, the case sets no precedent, and difficult and divisive issues will remain unresolved.

As troubling as is to see partisan politics affecting the ability of the Court to do its work, what is even more worrisome is the willingness of these Senators to ignore both their constitutional duty and the best interests of the American people in order to demean and diminish a President who was twice elected by large majorities of the American people.

This fixation on sabotaging anything and everything the President does—this unwillingness to support even policies that were originally their own if President Obama proposes them, the refusal to confirm not just a replacement for Scalia, but dozens of lower court judges and agency appointments—is behavior that undermines America’s democratic institutions and calls into question our continued ability to govern ourselves.

This ugly and unpatriotic conduct should be beneath the dignity of members of the United States Senate, but it clearly isn’t.

Although I didn’t plan to say this at the event, it is noteworthy that none of the candidates for the Republican presidential nomination has bothered to counsel against this assault on settled constitutional processes, or express concern that legitimizing this level of animus will make it more difficult for the next President to accomplish anything.

We’re going down a very dangerous road.

Sheila HeadshotSheila Suess Kennedy, J.D. is the Professor of Law and Public Policy in the School of Public and Environmental Affairs at Indiana University Purdue University at Indianapolis and former Director of the Center for Civic Literacy. She is the Executive Editor for the Journal of Civic Literacy.  This post was originally published on the blog, sheilakennedy.net and is republished here with the permission of the author.

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