In late January, Senate Majority Leader Mitch McConnell told board members of the House Freedom Caucus that there isn’t “a snowball’s chance in Hell” that he will back down from his opposition to confirming a Supreme Court Justice before a new president is elected.
McConnell’s comment came after Ohio Congressman Jim Jordan, caucus chairman, urged him to “stay the course” and not back down from a fight with the White House and Senate Democrats.
That is the great fear with the electorate and the reason Donald Trump is doing so well with voters, the fear that the GOP establishment in the end will fold and give the president what he wants. It has happened before and could very well again regardless of what Republican rank-and-file want and say.
Taking a different approach was William McGurn writing for the Wall Street Journal. His article is entitled “Republicans should want a Court fight.”
Mr. McGurn reasons, “In the Senate, his vacant Supreme Court seat offers majority leader McConnell and others an opportunity to thump Barack Obama for his lawlessness and to obtain some measure of redress from a Democrat Party that has never paid a price for the way it vilified Justice Scalia’s friend Robert Bork.”
Yes, Judge Robert Bork was vilified by Senate Democrats, but his treatment was nothing as compared with how Justice Clarence Thomas was portrayed by Anita Hill in her testimony – another new low for Senate Democrats.
Mr. McGurn then cites what Justice Scalia knew all along. If nominees are now treated in a crude and political way, it’s because the Supreme Court itself asked for it.
Ever since Judge Bork was voted down in 1987, Washington has abided by a double standard. Just look at the president, who recently “scolded the senate” about its solemn duty to confirm his pick for the court but who as Senator Obama in 2006 joined an 11th-hour attempt to filibuster Samuel Alito.
There are also news clips showing Vice President Joe Biden and Senator Chuck Schumer cautioning President H.W. Bush not to nominate a Supreme Court replacement in his last eighteen months of office.
We are told that some GOP senators fear being called partisan if they refuse to hear or look at the president’s nominee. What they need to do is take the case to the American people. The president has made many end runs around the law. The Senate’s advice-and-consent power is one of the few ways Congress can check the abuse of executive power.
The second part of the case is recognizing, as Justice Scalia did, that it was the Supreme Court’s own activism which has given rise to the partisanship that has infected the nomination process. “It began in 1973 when seven Supreme Court Justices substituted their own views on abortion for the laws of most of the land.”
Five of these seven justices had been appointed by Republican presidents.
Years later, Republican-appointed Justice Anthony Kennedy unearthed a right to same-sex marriage that has likewise rendered moot all Democratic debate and compromise.
Writing for the minority dissent, Justice Scalia wrote, “A democratic people should be using the nomination process to pressure them so that the values that prevail are the peoples and not those of nine unelected men and women in robes.”
What most fear is recognizing GOP congressional leaders of today can be browbeaten by the press and stronger individuals. Republicans do not have overreaching political leaders who can stand up to imperious Supreme Court judges and the current president.