Just when you thought that the fringe right wing politicians who have taken over the Republican Party couldn’t veer any further out of the American political mainstream, they prove once again that they are willing to discard any democratic institution or constitutional principle that stands in their way.
In fact, for all their talk of “original intent” or strict adherence to the rule of law, or the language and spirit of the Constitution, they couldn’t give a rat’s back end when their radical right wing agenda is in jeopardy.
Without even waiting to see whom the President would nominate to the Supreme Court to succeed the late Justice Antonin Scalia, the Senate GOP leadership has announced that they will reject any Obama appointment. Wouldn’t matter to them, they say, if the nominee had the qualifications of say, Abraham Lincoln, the founder of the Republican Party.
No they say, in the words of that legal genius Marco Rubio, "There comes a point in the last year of the president, especially in their second term, where you stop nominating, or you stop the advice and consent process." Rubio wants to wait until a new President is elected – which, of course, he hopes will be him.
GOP leaders claim there is “no precedent” for confirming a Supreme Court nominee in an election year. That is empirically wrong.
Actually, Marco, there is no point in time when, under the Constitution – or historically – Presidents stop nominating.
In fact, six Justices have been confirmed in presidential election years, including three Republicans. And another 11 have been confirmed in non-Presidential election years.
Most recently, Justice Kennedy, a Reagan appointee, was confirmed by a Democratic-controlled Congress in February 1988.
It would be completely irresponsible to let a vacancy on the Court extend into 2017. If the Senate fails to act, the Supreme Court will go for well over a year – stretching over two terms of the Court, with a vacancy.
That would be unprecedented for the modern Supreme Court. In fact, since 1980, Congress has almost never left any vacancy during a single Supreme Court session – and there has never been a vacancy spanning more than one term.
In fact, there has never been a vacancy for longer than four months during a single Supreme Court session.
The President has a Constitutional responsibility to appoint successors for vacancies on the Supreme Court. And the Senate has the Constitutional responsibility to consider those nominees.
Since 1980, there have been 12 appointments to the Supreme Court. Every one of these has been given a prompt hearing and vote within 100 days. There are 340 days left in President Obama’s term of office – plenty of time for nominees to be approved.
And it’s worth noting that the previous 11 times that the Senate has confirmed a Supreme Court justice nominated by a president of the opposite party, it’s been Democrats confirming Republicans. They include Justices Clarence Thomas, David Souter, Anthony Kennedy, John Paul Stevens, William Rehnquist, Lewis Powell, Harry Blackmun, Charles Whitaker, William Brennan, John Marshall Harlan and Chief Justice Warren Burger.
Though Marco Rubio may not be the sharpest math wiz, it should be obvious even to him that if the Supreme Court does not have its full complement of nine Justices it is severely hampered in executing its Constitutional functions. With an even number of Justices on the Court there is no tie-breaker. That means the Court’s ability to render clear, final legal decisions is severely hamstrung.
But far from committing to hold a vote on an Obama Supreme Court nominee, some GOP Senators have vowed even to oppose a hearing.
Never in the history of the Republic has the Senate failed to give a Presidential Supreme Court nominee a hearing.
In fact, the only reason GOP Senate Leader Mitch McConnell would deny a hearing – or a vote -- is ideological disagreement with any Obama nominee.
But it was A. Mitchell McConnell, Jr., who wrote in a law review article for the Kentucky Law Journal in 1970 that:
….the Senate should discount the philosophy of nominees….The President is presumably elected by the people to carry out a program and altering the ideological direction of the Supreme Court would seem to be a perfectly legitimate part of a Presidential platform. To that end, the Constitution gives him the power to nominate. As mentioned earlier, if the power to nominate had been given to the Senate, as was considered during the debates of the Constitutional Convention, then it would be proper for the Senate to consider political philosophy. The proper role of the Senate is to advise and consent to the particular nomination, and then as the Constitution puts it “to appoint.”
Of course McConnell wrote those words while Richard Nixon was President. Apparently the same standard no longer applies to nominations made by Barack Obama.
But the GOP-controlled Senate will ignore its responsibilities under the Constitution at its peril.
Twenty-four GOP-held Senate seats are up for election this cycle – only ten held by Democrats. Many of those GOP Senators are in states that were won in 2012 by Barack Obama including: Kirk in Illinois, Toomey in Pennsylvania, Portman in Ohio, Ayotte in New Hampshire, Johnson in Wisconsin, and Rubio’s open seat of Florida.
Unbridled obstruction of the President’s Supreme Court nomination will do serious damage to many of these endangered incumbents – and that could cost the Republicans control of the Senate itself.
What’s more, the last thing the GOP needs is for the Presidential election to be fought over the ideological bent of the Supreme Court. Extremist right wing views may be all the rage inside the narrow circle of Republican primary voters. But they are toxic within the broader electorate.
And just think how thrilled those swing-state GOP Senators will be if they have to run in a election where a major question before the electorate is whether to allow Donald Trump or Ted Cruz to reshape the Supreme Court – immediately after the election.
In that context, Trump’s promise to ban Muslims, or Cruz’s commitment to ship off 11 million undocumented immigrants takes on a much more ominous note.
The proto-Fascist, un-American ideas of Cruz and Trump may seem to most of us to lie far outside of America’s core Constitutional values. But they will be “constitutional” if a Trump or Cruz Supreme Court says they are.
That’s why the GOP leadership may posture and pontificate about how they won’t even consider an Obama nominee to the Supreme Court. But in the end, they will either abandon their obstructionism, or pay an enormous political price at the polls this November.
Robert Creamer is a long-time political organizer and strategist, and author of the book: Stand Up Straight: How Progressives Can Win, available on He is a partner in Democracy Partners and a Senior Strategist for Americans United for Change. Follow him on Twitter @rbcreamer.