Last week I discussed the stark reversal of
course of some GOP lawmakers’ 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, 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. Not surprisingly, the administration fired her.
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 has collectively been quite salty about what it
views as Democrat’s 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, the
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,"
In making his
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.
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 aligns 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. 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 Cruz and Burr’ is that Democratic
presidents—whether Obama or a hypothetical 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 other party’s mandate. It’s the only
logical end 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 pretense that Democrats 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, et. al. Speak onBlocking Prospective Clinton Court Nominations.”
I’m done; holla
back!
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