Thursday, March 3, 2016

Constitutional Responsibility

Supreme Court Justice Antonin Scalia died unexpectedly on February 13, 2016. The longest-serving of the current justices, he was the lynchpin of the Court’s five person conservative wing. There were few legal arguments on which I could agree with him, but this blog is not to rehash past Court decisions or Scalia arguments. Rather, it is to comment on what has transpired since his death.

Less than one hour after the public announcement of Scalia’s death, Senate Majority Leader Mitch McConnell stood in front of microphones and cameras on Capitol Hill and incredibly declared – in effect – that the President of the United States did not have the authority to appoint a replacement to fill Scalia’s vacancy, notwithstanding the express words of such authority in our Constitution. (So much for any believers in “strict constructionism.”) Further, if the President nevertheless dared to send forth such a nomination, Senate Republicans as a block would conduct no hearings on that person’s qualifications, and no confirmation vote would be taken. In fact, the nominee would not even be granted the basic courtesy of an introduction  and handshake!

The ostensible reason for this negation is that the current President is in the last year of his second 4-year term. An election for his replacement is in process, albeit over eight months away. So “the American People should have a say” in who is to be nominated as a result of who is elected the NEXT president – even though the vacancy is NOW. This is all, of course, utter legal and political nonsense. As well as governance nonsense – but far more egregious than we have seen before. Because this is nothing less than the willful Congressional redefinition of the express words of the Constitution by a political party claiming to be the true believer and defender of that Constitution. And such an action deserves to be called out for the insubordination and attempted usurpation of power that it is.

Article 2 / Section 1 of the Constitution says that “executive Power shall be vested in a President of the United States of America.” It further states that “[The President] shall hold his Office during the Term of four Years.” It does not say “except when other people are running to replace him.” (These days, people are running for four years to be the next president!) Article 2 / Section 2 says that “[the President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court.” It does not say a “future” or “next” President. We have a President elected by the people; we have a Supreme Court vacancy. The President’s job responsibility is clear: make an appointment. We have a Congress; their job is to consider the candidate fairly, based upon his/her judicial qualifications and personal integrity, not political or social philosophy. Those philosophies are inherently embedded in the President elected by the people and who nominates the candidate. (Admittedly, not all justices turn out to be what their President expected!) The Senate’s job responsibility is clear: advise and consent on the nomination, based upon the nominee’s qualifications and character.

Playing out Mitch McConnell’s Constitutional confrontation is not just another ugly political battle such as we have become far too accustomed to seeing. It is also an insurrection with consequences. The Court has essentially been a 5-4 deliberating body for years. This one vacancy will make many key decisions a 4-4 tie. The Court is now halfway through its October-June session, with few cases yet decided and announced. There are major substantive cases accepted for review this session which will now go 4-4 undecided, meaning the decisions of the lower courts will stand. Most of those decisions have gone against the McConnell / conservative political agenda, so those losses will now be confirmed. In these contentious times, a 4-4 non-decision is not sufficient legal guidance; these cases deserve a more honest and final conclusion.

To add insult to injury, waiting for a new President means we will not only freeze the current session into a stalemate; we will lose virtually all of next year’s session in a second stalemate. By the time a new President is inaugurated next January, picks a nominee, and the Senate waddles its way through its advise and consent process, it will be April 2017 at the earliest – two months before the 2016-17 session ends. Two full sessions without a fully staffed Court is an inexcusable situation for our governance. Further, in this high stakes poker game, Republicans are counting on the new president being a Republican. Do they really think they will get a better choice a year from now should it be a President Clinton or Sanders?

Around one-third of the Senate seats are up for election this November. If our Constitution has been de facto amended such that Executive Branch leaders are no longer allowed to perform their responsibilities due to being suspended during an election, then that should also apply to sitting Senators. No voting or decision-making by them until after the election. Given Congress’ non-performance over the past six years, we would not likely notice the difference.

This is all quite a pathetic excuse for leadership and governance. Congress has long neutered itself of any meaningful governmental role. The Presidency has been marginalized. And now we are rendering our Supreme Court – supposedly the bastion of the rule of law and the bulwark against political excesses-of-the-moment – powerless. The country that claims the mantle of “most powerful leader of the world” acts more like an emerging chaotic 3rd-world country.

This gamesmanship is the latest reason why Americans are so disgusted with political “leaders.” Angry at their manipulation of governance systems, and the casting of all meaningful issues into the garbage bin of political opportunism and grabs for power. On this particular topic, both parties are rolling out quotes from speeches and position papers of long ago. Each party has advocated opposite opinions against themselves, talking out of both sides of their mouths depending on whether they are in the majority driver’s seat or out. The hypocrisy of everyone in this debate is astounding. Our politicians sound like spiteful sibling children in the playground, arguing that it is the other person’s fault because “they did it first.” Do they not remember their mother’s admonition from long ago saying, “two wrongs do not make a right”?

Just once it would be nice to see elected leaders lead by doing what is simply the right thing to do, rather than what is politically expedient, or what benefits their personal reelection agenda, or because the other Party did such and such. This is one of those times. Certainly we would all like to see our preferred jurist on the Court. But we are charged with being responsible citizens that accept the reality of timing; sometimes timing goes our way, and sometimes it does not. The pendulum always swings back and forth. Antonin Scalia died when he did. Like it or not, we have to move forward from this moment in time.

The United States Supreme Court has already become far too political an institution. This latest political high-jacking only serves to further that politicization. We need to restore judicial integrity as our highest priority, higher than any particular ideology. We need to do so by fulfilling the Constitution that the Supreme Court is charged with safeguarding.

©   2016   Randy Bell                         www.ThoughtsFromTheMountain.blogspot.com

2 comments:

Anonymous said...

i agree what is happening is beyond belief - it is as if the Republicans hope to obscure the fact that they have not kept their pre-election promises by acting like intransigent children, who have had a rude surprise and now want to stubborn up and pout, ruining things for eveyone else - mistaking passive aggressiveness for toughness. What a revolting situation this is, in the immortal words of Chester A. Riley.

Anonymous said...

Thank you for helping me think through the swirl of data which is laced with emotion and my own biases. I deeply appreciate your knowledge base and thoughtfulness which you share with those of us who read your blog. Thank you thank you.