Why Progressives' Stance on Replacing Scalia Is So Hypocritical

By Pascal Emmanuel Gobry

Wednesday, February 17, 2016

On issues of constitutional process people always seem to fall down on partisan lines.

On the issue of replacing Antonin Scalia on the highest court of the land, it's been the same rigmarole. The Republicans, who control the Senate, have said that they're not going to confirm any nominee this year. The rationale is obvious: They hope that the GOP wins the next presidential election (and holds on to the Senate) so that they can appoint a conservative justice, which wouldn't be the case with an Obama appointment. There's also a political rationale: With Scalia's seat essentially on the ballot, this is a priceless opportunity to turn out the base.

And, predictably, liberals are crying foul. The president has a constitutional right to appoint justices! "Failing to fill this vacancy would be a shameful abdication of one of the Senate’s most essential constitutional responsibilities," said Senate Minority Leader Harry Reid (D-Nev.). Conservatives are bleating about respecting the Constitution even as they trample it underfoot! The tweets write themselves, and they have.

But this is nonsense.

Both sides are playing politics on this. Both parties have played an escalating game of tit-for-tat obstructionism on judicial appointments for the past 30 years, as the importance of the court in the policymaking process has grown, and as partisan division has become more bitter. Both parties have tried to stall nominations, hoping for a better political climate.

But conservatives have a long memory and one reason why they're playing the world's smallest violins to Democrats' complaints about fair process when it comes to judicial appointments is because this whole acrimonious vendetta process started in 1987 — with Reagan's nomination of Robert Bork to fill a Supreme Court seat — when Democrats orchestrated an unprecedented smear campaign against a respected constitutional scholar.

Some conservatives can quote from memory former Sen. Ted Kennedy's infamous, and slanderous, floor speech against Bork:

Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters… writers and artists could be censored at the whim of the government…. President Reagan is still our president. But he should not be able to…impose his reactionary vision of the Constitution on the Supreme Court and the next generation of Americans. [Ted Kennedy]

Bork was eventually rejected, and his rejection led to the appointment of our current philosopher-king, Anthony Kennedy. The demagoguery was so intense that it became a verb, "borking," to intentionally and maliciously destroy the character of a nominee for political reasons. And it's the borking precedent that has made the Supreme Court appointment process so broken. So conservatives have no patience with progressive crocodile tears about constitutional process and playing politics.

The Constitution requires the "advice and consent" of the Senate. The leader of the Senate majority, Mitch McConnell, has given his advice to the president: "Don't appoint somebody." For the Senate to say that before even considering the eventual nominee is a breach of decorum, sure, but a breach of decorum is not a breach of the Constitution. McConnell's statement could be seen as a helpful way to prevent wasting everyone's time.

This fight exemplifies the Constitution's system of separation of powers. You need more than one branch of government to do something important, and when those branches disagree, they squabble. This is how the Constitution is designed to work. When the branches disagree, one option, of course, is for them to meet each other on a compromise. Another option is to not do anything. Whichever one of those options might be good or bad as a matter of politics or policy, but the Constitution doesn't require one or the other.

Ah, but what about "governing?" you say. It's important to "govern." It's important to "get things done." Well, rejecting Supreme Court nominees is governing. You may disagree with the Senate Republican caucus about what constitutes a bad Supreme Court nominee, and wish that they would consider confirming Obama's nominees. But that just means that you disagree with the Senate Republican caucus about who should be on the Supreme Court. This doesn't mean that the Senate Republican caucus is not "governing."

The Supreme Court can absolutely function with eight justices, and often has. You don't need the nine justices to activate their judicial powers. The argument that it would boost the court's legitimacy to have a seat — and a crucial seat, one that could upset the court's balance — be, essentially, on the ballot in a general election, is not at all crazy.

Here's the reality of the issue: The Republicans want one thing, and the Democrats want another. And so they are having a political fight about it. And because this is an issue on which the stakes are extremely high, Republicans are willing to fight very hard. And so are Democrats. And so they are fighting. There's nothing about that that's against the Constitution. In fact, it's the opposite: It's precisely what the Constitution encourages.

So yes, both sides are playing politics — because it's their job. Various groups of people in the country have differing views about the right policies for the country, and so they elect representatives, and those representatives squabble among themselves. That's what politics is.

If you don't think Antonin Scalia's replacement should be another Scalia, you're well entitled to that opinion. But having a different opinion is not a breach of the Constitution.