On Scalia’s replacement, Senate R’s should follow Obama’s lead

Yes, you read that headline correctly. In the wake of the extremely untimely death of Justice Antonin Scalia, I believe that Senate Republicans should follow Barack Obama’s lead when it comes to the next Supreme Court nomination. Specifically they should follow the path laid out by then Senator Obama in a 2005 speech explaining his decision to vote against the nomination of John Roberts. Specifically, Obama said that:

…while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases — what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.

Republicans in the Senate should take that standard to heart and both act and vote accordingly whenever Scalia’s replacement is finally nominated.

To be honest, Obama’s standard for evaluating a judicial nominee has almost nothing to recommend it. It has no basis in the Constitution, nor in historical tradition, nor in the oath that Judges take, nor in any common sense understanding of the role the judiciary can legitimately play in a democracy. Although calling it “Obama’s standard” is not entirely fair. In his speech Obama merely made explicit what had been implicit long before Obama came along, at least since 1987 and the defeat of the nomination of Robert Bork to the Court, and that is that the judiciary is a political branch of the government that makes decisions based on not on the law or the constitution, but rather on the personal values and political philosophy of individual judges.

Again, there is almost nothing to recommend Obama’s approach to nominating and confirming judges. Almost. The only thing that does recommend it is that it is already a reality for roughly half of those involved in the process, including half of those already on the court. Given that reality, R’s have virtually no choice but to play by the same rules. To be sure, embracing those rules is destined to alter the nature of our political system beyond recognition, but R’s must face the fact that it has already started to happen without them, and will continue to happen with or without them. The best they can hope to do is embrace this new system in the hopes of influencing the system towards their own values. The idea of objective law being applied objectively by judges seeking to understand the law on its own terms regardless of personal values is, we must admit, a failed experiment.

A baseball team facing an opponent that not only routinely ignores the written rules of the game but has bought off half of the umpires in its effort to do so has no choice but to follow suit. Republican Senators must establish explicit political litmus tests for potential nominees to the court, and must apply those tests ruthlessly, using all possible political machinations to impose their will. They must, as Senator Obama did, vote only for those nominees to the court which reflect their own “deepest values”, their own “core concerns”, their own world philosophy, their own notion of who deserves “empathy”.

The days of allowing well qualified judges of any political stripe to sit on the court are over. We may lament that fact, but we must accept it nonetheless. The Court is now a political branch of the government, and to treat it as something different is to deny reality. The politics of nominees to the court explicitly matter. R’s must do everything they can to understand the politics of future nominees, and reject any nominee that does not reflect their own conservative values and a conservative understanding of the constitution. In other words, they must take Obama at his word and do exactly what he would have them do. The Democrats asked for this kind of process. R’s should give it to them.

39 Responses

  1. I don’t see any Supreme Court justices being seated until one party or another has the presidency and a filibuster-proof Senate. We are just going to let the court attrition away until the only living members left of the current court are John Roberts and Ruth Bader Ginsburg.

    Liked by 1 person

  2. With all due respect, the president has never run a marathon. Nor have you (I’ll guess), Scott.

    I’ll restate my question from the last thread. How do you reconcile your not wanting a President Obama nominee to get a fair consideration in the Senate with a textual reading of the Constitution?

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    • Easy: the nomination process is politcal. I don’t recall seeing the word “fair” in the constitution.

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      • That said: I think not at least voting then down is a mistake. So if Bork begat Kennedy after the failed votes Obama can have a few rejected until he nominates Thomas 2.0.

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    • Mich:

      With all due respect, the president has never run a marathon. Nor have you (I’ll guess), Scott.

      I sincerely have no idea what this means.

      How do you reconcile your not wanting a President Obama nominee to get a fair consideration in the Senate with a textual reading of the Constitution?

      Obama’s nominees should indeed get a “fair consideration”, but only under his own understanding of that term, meaning that his nominees should be evaluated, and either accepted or rejected, based upon their politics (ie their “values”, their worldview, and their willingness to impose their own “empathy” on others).

      The gambit you are attempting here, appealing to conservative notions of the constitution in the service of empowering those who reject and would destroy those same notions, is just a “heads I win, tails you lose” proposition, something I wrote about here some time ago. The idea of liberals holding conservatives to a standard that liberals themselves reject is not, I think, something that conservatives should concern themselves with. Liberals have plainly politicized the judiciary and the nomination process. Conservatives must take that as a given and behave accordingly, even if, as a matter of principle, they oppose the politicization of the judiciary and the nomination process.

      Liked by 1 person

      • “Liberals have plainly politicized the judiciary and the nomination process.”

        Not just that. This is also payback for executive orders on immigration, the BS process to bypass ratification with the Iranian nuclear deal, the nuclear option on the filibusters, etc.

        It’s been a long time coming.

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    • John Yoo’s answer:

      “”[The Senate’s] right to delay or reject nominees is an important weapon in the constant struggle for advantage between the executive and the legislative branches,” writes John Yoo, a Berkeley law professor and President George W. Bush’s controversial deputy assistant attorney general, in National Review.”

      http://www.vox.com/2016/2/15/11008764/why-republicans-scalia-obama

      Having said that, I think refusing to consider any nominees is a tactical mistake. Republican Senators should make it clear that, for example, the aforementioned Mr. Yoo would past muster.

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      • Concur. This goes back to the non-functional pledge of “making Obama a one term-president”. This is clearly playing to a segment of the base (i.e., pandering for votes), but not establishing a strategy for advancing political or ideological goals. They should just say that Scalia set a high bar for any replacements, and any replacement nominated by Obama would have to meet that standard to be confirmed. Then, everyone Obama nominates doesn’t meet that standard.

        At a certain level, this whole “we can’t let a lame duck appointment a SCOTUS jurist” is saying: our voters are too stupid to figure out what we’re doing if we just don’t confirm anybody Obama nominates and run out the clock.

        Liked by 1 person

        • There is no % in the Rs doing anything but waiting out the clock on this one. If it backfires on the Rs it will be because the Ds will have won the Senate in November as well as the WH. But if the seat is vacant on Election Day, it is the Christian right that will be fired up to vote by the vacancy, not the great majority of voters in either party.

          Advantage, Rs.

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        • While I think there will be a lot of folks on both sides fired up by the vacancy, I think you’re right that more evangelicals will be convinced to pull the lever for a Republican they might find distasteful due to the vacancy. So, ultimately, advantage Rs. Also, during the primaries, could be advantage: Cruz. Or Rubio.

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        • “At a certain level, this whole “we can’t let a lame duck appointment a SCOTUS jurist” is saying: our voters are too stupid to figure out what we’re doing if we just don’t confirm anybody Obama nominates and run out the clock.”

          No, that argument is for media consumption. The Republican primary voters are the ones who explicitly want the clock to run out and don’t bother trying to rationalize it.

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        • jnc:

          No, that argument is for media consumption. The Republican primary voters are the ones who explicitly want the clock to run out and don’t bother trying to rationalize it.

          The best theory I have heard is that McConnell has to explicitly say they won’t confirm in order to appease R voters who don’t trust him. If he tries to play the PR game of saying “Sure we will consider whoever Obama chooses,” while fully intending to drag it out and never confirm, R voters will revolt because they will assume he is actually just caving in. Which is, of course, entirely within the realm of possibility.

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        • My bet is he’ll cave.

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        • Then why is that the argument for media consumption? I would think the argument would be: If Obama sends us a qualified jurist dedicated to an explicit reading of the text of the constitution, then we will of course confirm them. And then argue that every nominee clearly is too liberal in their interpretation of the law.

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    • I assume the strategy is going to be use legitimate processes that prevent any one he nominates from being appointed, thus withholding their consent. So, arguably, it might be outside of the spirit of the constitution but will adhere to the letter of it (thus, making it a “textual” interpretation). I’m not sure how they could do otherwise.

      But they may also be looking for cover: i.e., we told Obama not to nominate anybody. We said the appointment should wait for the next president. But then he didn’t listen to us, so that’s how a new justice ended up being seated.

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  3. The nomination of judges has been a game of Calvinball since Bork. The Democrats are willing to do whatever is necessary to advance their cause. No reason why Republicans should be shamed into doing what obama wants.

    Liked by 1 person

  4. Also, I don’t want to hear a peep from progressives about “civility” ever again after the reaction to Scalia’s death. Had half as much vitriol been posted about Carter or Ginsburg dying, they would have had a fit.

    On a related note, this has been making the rounds on the comment boards and Facebook:

    “Let’s Not Twist It. My Differences with Scalia Were More Than “Political”
    By Grizzard
    Saturday Feb 13, 2016 · 10:22 PM PST”

    http://www.dailykos.com/story/2016/2/13/1484955/-Let-s-Not-Twist-It-My-Differences-with-Scalia-Were-More-Than-Political

    I disagree with the definition of politics that’s given:

    “If you call these political differences, as if they’re just different methods of solving a problem, you demonstrate a stunning lack of understanding that when Antonin Scalia spoke and wrote, his words carried unique power that often led to death, added to prejudice, and threatened to set America back a hundred years.”

    Politics isn’t just about “different methods of solving a problem”. It can just as easily be about what’s considered a problem in the first place. Politics at it’s root is a way to resolve fundamental disagreements, usually without violence.

    When it breaks down and people take the attitude of the author that Scalia’s positions aren’t just wrong but immoral and outside the pale and therefore no tactic is out of bounds to oppose them, then politics does break down. However the result isn’t victory for the author and his ilk, but rather a devolution to resolving the questions through violence instead.

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    • “aren’t just wrong but immoral and outside the pale and therefore no tactic is out of bounds to oppose them”

      Moral equivalent of war. Jonah Goldberg wrote a whole book about. and it hit really close to the mark, cause they shit themselves anytime it comes up.

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    • Civility is over with. Just look at the Republican debates! Or 90% of the comments on Plumline. Clearly, civility is something imposed from the outside, not something that bubbles up from within the human spirit. We practice some civility here (because there are rules!) but generally, civility is in short supply. Clear enough after Reagan’s death, reiterated after Scalias. I doubt Ginsberg would be met with much more civility if she passed, aside from the usual bastions of conservative punditry that meet a standard of civility that is required because . . . it is required. I expect there will be numerous rogue pundits and commentators on the Interwebz that would be as uncivil as humanly possible. I see amazing things on Facebook, meme-wise, about both Republicans and Democrats and they share a commonality of barely-or-non-factual, out-of-context assertions of black-and-white moral truths with clear good guys and bad guys, and lots of general rudeness. But come on. When have we ever been civil to the opposing team in our various bloodsports?

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    • Wait a second. I spent a couple of days being eviscerated because I asked people to not celebrate his death.

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  5. Not sure I buy this:

    “And now—finally!—for the point I promised to make: What all this means is that Republican voters are likely to be more fired up by the Scalia vacancy than Democrats. And they’re going to stay fired up by Fox News and the rest of the gang. If Democrats want to match this, they’re going to have to really work at it. My guess is that the Supreme Court fight is good for a 1-2 percent increase in Republican turnout this November. It’s not clear to me if Democrats can match this.”

    http://www.motherjones.com/kevin-drum/2016/02/democrats-fighting-ghost-robert-bork-year

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    • I would play the 2nd amendment card the way the left plays the abortion card. One more liberal on the court and your right to bear arms is at risk.
      Better get fired up, better donate, or else the country is screwed…

      Hyperbole, sure but all is fair in love and war..

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  6. BTW, this is a lengthy and interesting interview with Scalia from a few years ago. Worth a read.

    http://nymag.com/news/features/antonin-scalia-2013-10/

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    • I remember the article at the time. He got a lot of raised eyebrows for discussing at length the role of The Devil in society.

      [Leans in, stage-whispers.] I even believe in the Devil.

      You do?
      Of course! Yeah, he’s a real person. Hey, c’mon, that’s standard Catholic doctrine! Every Catholic believes that.

      Every Catholic believes this? There’s a wide variety of Catholics out there …
      If you are faithful to Catholic dogma, that is certainly a large part of it.

      Have you seen evidence of the Devil lately?
      You know, it is curious. In the Gospels, the Devil is doing all sorts of things. He’s making pigs run off cliffs, he’s possessing people and whatnot. And that doesn’t happen very much anymore.

      No.
      It’s because he’s smart.

      So what’s he doing now?
      What he’s doing now is getting people not to believe in him or in God. He’s much more successful that way.

      That has really painful implications for atheists. Are you sure that’s the ­Devil’s work?
      I didn’t say atheists are the Devil’s work.

      Well, you’re saying the Devil is ­persuading people to not believe in God. Couldn’t there be other reasons to not believe?
      Well, there certainly can be other reasons. But it certainly favors the Devil’s desires. I mean, c’mon, that’s the explanation for why there’s not demonic possession all over the place. That always puzzled me. What happened to the Devil, you know? He used to be all over the place. He used to be all over the New Testament.

      Right.
      What happened to him?

      He just got wilier.
      He got wilier.

      Isn’t it terribly frightening to believe in the Devil?
      You’re looking at me as though I’m weird. My God! Are you so out of touch with most of America, most of which believes in the Devil? I mean, Jesus Christ believed in the Devil! It’s in the Gospels! You travel in circles that are so, so removed from mainstream America that you are appalled that anybody would believe in the Devil! Most of mankind has believed in the Devil, for all of history. Many more intelligent people than you or me have believed in the Devil.

      If only he could report back to us now.

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  7. BTW, yello, I remain curious if it is really true that you think certain ideas are so “repugnant” that they ought not be allowed to even be expressed.

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    • I remain curious if it is really true that you think certain ideas are so “repugnant” that they ought not be allowed to even be expressed.

      I’m a First Amendment Absolutist so I’m willing to tolerate all sorts of unpopular opinions. It’s better to bring things out into the light of day for all to see rather than let them fester. The closest I get to drawing the line would be, say, the advocacy for the molesting of young children that NAMBLA does (or did, is it even around anymore except as a whipping boy?) since it leads to the rationalization of their behavior rather than to seek help. Similarly, pro-anorexia websites aid and abet people with self-destructive tendencies. But I would not outright prohibit them.

      I have no problem with listening to and analyzing Bork’s legal theories but I’m not going to advocate putting him is a position of power to implement them.

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      • yello:

        I’m a First Amendment Absolutist…

        Then what did you mean when you said:

        The all important Right To Hate that conservatives seem so defensive of. It’s the same argument being used by those claiming Christians are being persecuted by not being allowed to discriminate against gays and the transgendered.

        It’s also the same argument Rand Paul used to use to claim that civil rights laws shouldn’t apply to private businesses. These are repugnant ideas which should not be enshrined no matter how noble and high-minded they are gussied up as.

        You can’t sensibly claim to be a first amendment absolutist while at the same time claiming that the government should prevent a baker from saying “We don’t bake cakes for gay weddings.”

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        • I’m not following you down that rabbit hole. The First Amendment is not a fig leaf for bigots to hide behind. If you engage in commerce, you have to follow the law. Hate on your own time.

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        • yello:

          The First Amendment is not a fig leaf for bigots to hide behind.

          Correct, it is not a fig leaf, it is a specified legal right for bigots – and everyone else with something controversial to say – to hide behind. That is precisely its purpose. If one is to take your thinking seriously, the first amendment would be devoid of any real meaning.

          “The First Amendment is not a fig leaf for anti-Americans to hide behind.”

          “The First Amendment is not a fig leaf for socialists to hide behind.”

          “The First Amendment is not a fig leaf for atheists to hide behind.”

          “The First Amendment is not a fig leaf for [any disfavored opinion holders] to hide behind.”

          Any way, this just proves that you are not in fact a first amendment absolutist in any meaningful sense. More accurately you are a first amendment selectivist. You are in favor of free speech except when you are not.

          If you engage in commerce, you have to follow the law.

          I believe one must follow the law even when one isn’t engaged in commerce.

          But of course the question is not whether or when a person must follow the law, but rather whether certain laws are in accord with or contrary to the first amendment. Just because you like the law doesn’t mean it doesn’t violate the first amendment. Especially given what we now know about your selective application of the first amendment.

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      • “I have no problem with listening to and analyzing Bork’s legal theories but I’m not going to advocate putting him is a position of power to implement them.”

        Sure, but are you going to then try and argue that the basis for rejecting him isn’t ideology?

        Like

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