The cynicism on display in the aftermath of Justice Antonin Scalia’s death has been staggering. And I’m not talking about the Republicans.
From the party that gave us the term “Borking,” the party that refused to confirm Miguel Estrada to a federal appellate court because he had said too little about his political views and because he might give Republicans a hero in the Hispanic community, we get high dudgeon about the Senate’s responsibility to clear a path for the president’s nominee to the Supreme Court. We are talking about the nominee of a president, remember, who joined a filibuster of one of his predecessor’s nominees and who has had famously lukewarm relations even with members of Congress from his own party.
It is utterly fitting that this should happen in an administration that employs as vice president one Joe Biden, whose failures bookend the three-decade era that has brought us to this point. Biden led the charge against Robert Bork’s 1987 Supreme Court nomination — the scuttling of which is the only reason liberals can accurately say a Reagan appointee was confirmed in the lame-duck election year of 1988 — and he has been unable to succeed in the role of congressional fixer for the distant and disinterested President Obama. If Biden were to write a book about obstructionism regarding federal judicial appointments, he’d have to cast himself as one of the main characters.
No, the country should not be in the position of a standoff that could mean an unprecedented, two-year short-handedness on the nation’s highest court. The casualties of such a prolonged vacancy would be numerous, from the schoolchildren and educators who likely will remain hostage to overly political teachers’ unions to the Catholic nuns who may not win a reprieve from the Obamacare mandate to provide contraceptives in health-insurance plans, among others. But to pretend that the current episode of gridlock is a feature fully built and maintained by a year-old GOP majority is to be in denial of all that came before. Namely, the Democrats’ innovations in being the first group to filibuster a Supreme Court nominee (Bork) or an appeals court choice (Estrada) for purely, and nakedly, ideological and political reasons.
Could Senate Majority Leader Mitch McConnell have been craftier about refusing to seat a dyed-in-the-wool liberal justice to replace Scalia and thereby tip the court from more or less ideological equilibrium (four conservatives, four liberals and the independent-minded Anthony Kennedy)? Of course. He could have said something like, “The Senate will give the president’s nominee its due consideration,” and then upon receiving a liberal nominee said such person wasn’t due the Senate’s attentions. Are we really to pretend liberals would have been any more understanding in that scenario? The party that talked itself into opposing Bork because he was too transparently conservative and Estrada because he was too opaquely so? That party would have appreciated McConnell’s maneuvering more than his simply stating the result upfront?
Yeah, and Bernie Sanders is going to take a spot on a Wall Street firm’s board of directors after he loses the election.
Or are we instead to believe Obama really would have chosen a true compromise candidate? What, based on all those other compromises to which he’s agreed over the years?
(This is me waiting for someone to name such a compromise. Still waiting. Still waiting …)
It would indeed be pleasant to have a more agreeable process. It would be pleasant to have a president who was equally worried about the Constitution as he made illegal recess appointments or overstepped his own acknowledged limit of authority in granting quasi-legal status to certain illegal immigrants. It would be pleasant to have a president who was so concerned about proper relations with Congress that he had proposed a budget that could receive more than a handful of votes even in a divided Congress.
Instead, we’re left with the liberals’ pleasant fiction that none of their actions since 1987 have any bearing on what’s going on with the court vacancy today.