Let's Play Politics or Know Your History

Antonin Scalia

With the passing of Antonin Scalia, many a thing has been put forward but history was not one of them.  Suddenly there were rules that never existed. There is the Constitution.  There is no such thing as the Thurmond rule.

Before the death had barely been announced, it was stated, tweeted, announced and put in a debate that President Obama should not nominate a successor and that the Republican-led Senate would not and should not consider any nominee.  This instantly means that the President is only President for three years and no one, no matter how qualified, will be considered. I also would point out that some of the harsher statements were walked back.

Benjamin Cardoza

There are the statements that no president has in at least the last 80 years nominated a justice in the last year of their presidency.  I have one thing to say: know your history.  The 80 year one referenced as the only one for nomination and approval took place in 1932.  Hoover's nominee, Justice Benjamin Cardozo took all of seven days to be nominated and confirmed. The average is now 70 days.

Abe Fortas

In fact, there have been several nominations in an election year in the modern era. Only one failed due to filibuster by cloture.  The last successful filibuster of a Supreme Court nominee was in 1968 when President Johnson nominated an Associate Justice, Abe Fortas to become Chief Justice.  Johnson then had to also withdraw Homer Thornbury who he had nominated to replace Fortas when Fortas was blocked. There were 22 hearings for Thornbury and Fortas.  The longest time a court appointment confirmation took was 125 days.  There are over 300 days left in Obama's term.

Robert Bork

The other statements that I love are that Obama voted for a filibuster by cloture in 2006 -not an election year- and that it is karma.  Obama admitted that the filibuster thing was not a wise choice. The cloture failed. By the way, the Justice involved, Samuel Alito, was approved.  The actual filibuster movement was not led by Obama.  The other "it's payback" was the blocking of Robert Bork in the 80's.   I would  like to point out that Bork was not filibustered and was not blocked without a hearing.  The senate acted exactly as the Constitution's "advise and consent" clause is supposed to work. Six republicans in the 58 total voted not to confirm  Bork. The next Reagan nominee, who had not supported Jim Crow laws and a number of other contentious decisions, Justice Anthony Kennedy was confirmed 97 zip.  The Bork battle did change the nomination process, but it did not stop it.

Alexander Polk

Bork was not the only nominee to not be approved by the senate.   The court did sit with an empty seat for 27 months just before the Civil War.  President Polk who replaced Tyler after his death held the record for rejected or withdrawn nominees at eight. This is the longest example I could find. There is no time in history I could find that the Senate has announced that it would not even consider a nominee.

There must also be irony in that the call for blocking any appointee by Obama because it is an election year.  Ironic because Scalia believed the Constitution should be interpreted literally.  He abhorred people who tried to re-interpret the Constitution by trying to put a context around it. Even conservative and retired Justice Sandra Day O'Conner has stated flatly, "I don't agree (with Republicans)," O'Connor, a Reagan appointee, said in an interview with Phoenix-based Fox affiliate KSAZ. "We need somebody in there to do the job and just get on with it."

To announce that no nominee will receive even a hearing or a vote is actually the only part of this mess that is unprecedented.  Playing politics is not new when it comes to nominations. Even  if we put the whole thing down as this is payback for Bork or Obama voting for cloture in 2006, I am still reminded of one thing: This is the Supreme Court of the United States whose members appointments are controlled not by an amendment but the Constitution.  It says very clearly the President shall nominate and the Senate will use "advise and consent" on the nomination.  The Constitution does not say that a group of politicians shall stand and claim that they are getting even for past actions like eight-year-olds on the playground.

I have one more comment about the arguments that this is payback or an election year choice and "elections have consequences":

If what was done was wrong in the past, does doing it wrong in the present make it right? Does the election we had in 2012 not count in its consequence? One cannot ignore the election of the past because you have an election in the future.


I am not a Constitutional expert but I see nothing about Presidents losing power to nominate in an election year. I also see nothing about the Senate refusing or delaying its "advice and consent" because it is an election year.  This is what it says in The Constitution, "he (The President) shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law..."

Two wrongs still do not make a right.