Democrats are hypocrites on court nominations; the GOP is just dumb

Mitch McConnell's court strategery: not so supreme. (Mark Wilson / Getty Images)

Mitch McConnell’s court strategery: not so supreme. (Mark Wilson / Getty Images)

I have written a couple of posts about why Democrats are hypocrites for complaining about Republican senators’ plan not to hold hearings for any person President Obama might nominate to the Supreme Court in place of the late Antonin Scalia. That doesn’t mean the GOP has it right. In fact, the biggest losers from Republicans’ tactics here just might be conservatives.

It’s not just that their pre-emptive refusal to hold hearings has ceded the moral high ground to Obama, which Senate Majority Leader Mitch McConnell has done perhaps irreparably. Imagine, for instance, if McConnell’s initial statement had been: “We have a family who are grieving and a nation that is in mourning. We have lost a great American. There is a constitutional process for replacing Supreme Court justices, and I’m not going to say anything more about it until the appropriate time after Justice Scalia’s funeral — and neither should anyone else.” That would have flipped the current situation on its head completely, while retaining total flexibility for Senate Republicans.

In the days after the funeral, clips like this one of then-Senate Judiciary Chairman Joe Biden from 1992 would have emerged, putting the Obama administration further on the defensive. Then, at the time of their choosing, the senators could have had one from their number deliver a speech about how the court would be put out of balance if Scalia were not replaced by another conservative justice — and the fact that, unlike with Obama’s first two court nominees, the American people had now entrusted the confirmation process to a Republican-led Senate. The Senate’s duty, the speaker would have continued, is to ensure a lame-duck president does not try to throw the court out of balance on his way out the door. Senators would be happy to entertain the nomination of someone who would not lead to such an imbalance.

The onus then would have been on Obama to nominate someone in keeping with this theme of balance. An actually acceptable nominee would have been a coup. Any nominee who would have threatened the court’s balance would have received a proper hearing but ultimately would have been rejected. With Republicans harping on balance above all, they could have maintained the high ground, and leverage with Obama, throughout the process.

***

But from a conservative standpoint, that’s not the only, or even best, reason for taking a different tack than McConnell and Co. have taken. For the best reason, just look at the polls.

The GOP front-runner is Donald Trump, who famously named his pro-choice sister as a good model for his potential Supreme Court nominees (although, after Scalia’s death, Trump said there would be a “conflict of interest” there and instead offered the names of appeals court judges Bill Pryor and Diane Sykes). The question is whether conservatives, who have watched Trump flip-flop on issues from abortion to gun control, not to mention being on the wrong side of the Kelo eminent domain case, could trust him to make solid court picks. Personally, I don’t. The other presidential candidates still in the running would be more trustworthy on that score, but obviously they face longer odds of winning the GOP nomination. Of course, there’s also the very real possibility Hillary Clinton (or, increasingly less likely, Bernie Sanders) gets to make the choices instead. And the Senate could also flip back to the Democrats in November, particularly if Trump is atop the GOP ticket.

So the GOP has some actual leverage with Obama now. They are the gatekeepers if he wants one last chance at putting his imprint on the nation’s highest court. But they have no guarantees, nor even a strong likelihood, of being able to assure a conservative nominee next year. And by refusing to consider an Obama nominee now, they are giving Democrats — those perennial innovators when it comes to altering the confirmation process — all the ammunition they would need next year to filibuster a conservative nominee.

They don’t call Republicans the “stupid party” for nothing.

Reader Comments 0

42 comments
Stan_Dup
Stan_Dup

The funniest point in Kyle's column is that he considers the recent court balanced. In a balanced court a moderate or swing vote justice would never have gone along with Citizens United.

boyesss
boyesss

wow. Just wow.

A few thoughts. One can forgive Kyle for overlooking the hypocrisy of McConnell's 2005 "time to move from advise and obstruct to advise and consent". There's no mandate that a conservative columnist offer a "balanced" view.

And one doesn't have to be a conservative to hate the Kelo decision, as I do.

But I would ask, where is it written that the Court be "balanced"?

Is this some sort of "tradition", or 'we've done it this way for 80 years", or possibly hidden in some obscure passage in the Constitution that I'm unaware of?

I'd really like to know

ATLnative72
ATLnative72


This is precious.  It's correct in every way, but it's precious to assume that the angry GOP of 2016 is into subtleties.

To even suggest giving Obama's nominees a hearing would be akin to conservative treason.  Even if there is a well calculated strategy to it, hyper-reactive GOP voters aren't sticking around for details.  Hence, the rise of Donald Trump.

lvg
lvg

@ATLnative72 GOP has become the party of endless theatrics ,. demagoguery, bufoonery and circus acts. Even Kyle and most GOP intelligentsia are getting worried if it truly is the Stupid Party.

JohnnyReb
JohnnyReb

I suppose Kyle needs a slap on the back for holding out as long as he has at the AJC without being infected by the Liberal virus that rules the place.

And even now he only has a mild case, however, he has it.

He does hit the nail on the head with the "stupid party" statement. Plus the leadership is weak.

After all, we are talking about a group who uses the fear of backlash from a government shutdown as an excuse for not using the only tool they have to stop Obama, the purse strings.

Never mind there is no evidence of past shutdowns hurting Republican elections other than the spin by Lap Media.

That leadership is now starting to cave with talks, at least in the media, of possible meetings with an Obama candidate to replace Scalia.

It will be miracle if they find a backbone and hold strong until the next president is in place.

Never mind the next president might not be a Republican or if a Republican not a true conservative who nominates a conservative judge.

Any candidate sent up by other than Obama will be a better one than what he picks.

lvg
lvg

@JohnnyReb Above is perfect example of why Stupid Party is imploding as the carnival barker and reality tv star takes over with no clue where he is going.

ByteMe
ByteMe

Kyle, you missed two more reasons that McConnell's strategy is going to fail miserably:


1. In a year when the Republican base is angry that Republicans are not doing the jobs their constituents sent them to Washington to do... their strategy here is to refuse to do their job?  You can see how well that's going to play after Obama nominates someone the Senate already (possibly unanimously?) confirmed before.  The contrast just gets too stark for the independents to ignore.


2. Republicans are defending 24 seats this cycle to the Democrats 10.  What are the odds that Democrats can flip 5 of them and take control over the Senate?  Pretty high -- especially with Trump at the top of the ticket -- and those Senators whose seats are most endangered will break ranks and start making noise that the nominee deserves consideration.  It's already started, but hasn't gotten loud yet, just because the nominee hasn't been named.  But once Obama does name the nominee and Democrats start meeting with the nominee, having Republicans not meet with the nominee at all is just going to seem like a childish tantrum to independents.


I accuse Democrats of sucking at their jobs, but McConnell made this too easy to screw up.  Although I'm sure they'll find a way.

Caius
Caius

Sandoval has his law degree from Ohio State, a long way in more than distance than the usual Harvard, Yale, Princeton connection.  Confirmed as a federal judge by Senate 89 - 0. My opinion he will not be the nominee.  Just my opinion.


Both Republicans and Democrats would be wise to see if they can make a deal on a nominee.  No one knows who will be the next president.  Republicans could end up seeing Ginsburg II seated on the Curt.  Democrats could end up seeing a Scala II on the Court.

The smart move for both parties would be seating a mutually agreeable justice.  That means the nasty, to many, M word.

Republican dislike for Obama is not a good enough reason to sit by and allow the Court to swing strongly to the left for the next 2 - 3 decades in the event a Democrat wins the White House. The next president will have more than the Scalia seat to fill.


Republicans have spent the last 15 years being the party of dumb. That needs to end.



sssinff
sssinff

Meh....at this rate, Trump will drive the GOP bus into a ditch. Hold off on the nomination. That's fine. A year and a half of 4-4 decisions, then Hillary gets to nominate someone to replace Scalia. Heaven forbid another justice vacate their seat between now and election day. Why keep a 9 person court? Why not just keep things at 7? Sure, why not!?


I can be patient! Maybe she'll nominate Obama.

gapeach101
gapeach101

Mr. Wingfield,  let's assume the republicans take the presidency and appoint a conservative judge.  If a left leaning judge were to pass during that president's term, we can rely on you to advocate that replacement be left leaning, in keeping with your "balanced court" scenario? 

Re Al A T
Re Al A T

How can the government be held hostage by a parrot faced, bad teeth tobacco chewing redneck from KY? Get rid of this obstructionist SOB and take the pinhead from Pinpoint with him. Maybe a coke and a smile and each other is all they need. Thomas will forever be known as a complete waste of humanity!

rimsky
rimsky

I don't think Mr. Wingfield you have neither read nor analyzed then Senator Biden's speech about the nomination process.

I have.

JKToole
JKToole

@rimsky Opinion columnists of today don't analyze entire speeches to interpret meaning. That would get in the way of proving their point.

HeyThere
HeyThere

If Republicans actually spoke as Kyle suggests here I'd vote for them much more often.

sssinff
sssinff

@HeyThere I almost feel sorry for Kyle. He has to continue to produce an ostensibly reasonable analysis of a party that is completely unhinged. Bless his hear.

HDB0329
HDB0329

The Supreme Court hasn't been in balance since Clarence Thomas was selected!! What's needed is someone that can interpret law and not just kowtow!! Now that Scalia's gone, you'll see what Thomas is REALLY like!!


Here's hoping Obama selects someone with some sense!! Loretta Lynch would be a good choice......Kamala Harris would be good also (but she doesn't want the job!)......

Wascatlady
Wascatlady

Your idea of "balance" might just be others' idea of "right-leaning."

Kyle_Wingfield
Kyle_Wingfield moderator

@Wascatlady Four conservatives, four liberals and a swing vote in the middle (Kennedy). Doesn't get much more balanced than that.

GaLatino
GaLatino

Only when it's not a right wing leaning opinion. If it is, then it's perfectly ok to "legislate from the bench". Geez, try to keep up ☺

RafeHollister
RafeHollister

The GOP establishment is in danger of losing the base totally, witness their inability to produce a viable establishment candidate, and if they let Obama play them or capitulate one more time, it will be the end of their perks, salaries, and decadent lifestyle and they know it.


McConnell knows that if a nominee gets a hearing and is seriously considered, the linguine spine members will start folding like a cheap suitcase, to the withering media assaults and Obama's mocking rhetoric.   I am not sure he can hold them upright even if he keeps them at arms length.


They did the right thing, it is easier to maintain your battle lines if you stand together behind a wall. There is no candidate that is going to satisfy both bases, one wants to fundamentally transform America regardless of Constitutional restrictions, and the other wants to protect American values and traditions by vigorously protecting the Constitution.  How do you compromise from those rigid positions.



xxxzzz
xxxzzz

@RafeHollister @Eye wonder Breyer will sometimes side with individuals against the government.  He and Scalia were sometimes together.  He's a classic liberal as opposed to an ends justified the means progressive.

Eye wonder
Eye wonder

@RafeHollister

Funny guy. The only side with a rigid position is the GOP. But you're correct - Obama will outmaneuver them (again) and a moderate Justice will be appointed.


RafeHollister
RafeHollister

@Eye wonder @RafeHollister The only rigid side is the left.  Find a decision where the libs on the court split.  It is a monolithic vote when Kagan,Soto Mayer, Breyer and Ginsburg vote.  I don't know why they all have to be there, just have a rep to vote for them.  The right splits up occasionally, the left never.  Same in Congress, the Dems always vote together and pick off a few different GOP pigeons each time to go along with trying to pass their current socialist pogram.  


JKToole
JKToole

@RafeHollister In 2014, 72% of the Supreme Court decisions were unanimous - the highest percentage in decades. The same year, only 14 percent of the court’s decisions were 5-4, with just four of those 10 splits along the liberal-conservative marker.

xxxzzz
xxxzzz

They would filibuster anyway.  And maybe we will have a different Republican senate majority leader who will just do to them what Reid did to the Republicans and do away with the filibuster.

xxxzzz
xxxzzz

But yes, coming out right away in public was pretty silly.  But McConnell has proved himself pretty incompetent as a Senate majority leader.  He won't even force the Democrats to actually talk when they filibuster.  People forget that it used to be uncomfortable to filibuster.  Now its too easy.

DerekGator
DerekGator

As a republican, it sucks that we lost the last 2 elections and as the saying goes, elections have consequences and we lost.  Obama is president until Jan 20, he gets to pick the nominee, that is the law, republicans need to accept that and try to work with Obama to pick a moderate. 

RafeHollister
RafeHollister

@DerekGator Wrong, Obama lost the Senate in 2014 and elections have consequences.  He needs to learn to deal with it.

JKToole
JKToole

@RafeHollister You're wrong. Obama was elected by nearly 66,000,000 Americans in 2012. Far greater than all the votes for all the lost Senate seats combined. Your argument is made entirely of straw. He carried 17 percent of the "conservative" and 11 percent of the "tea party" voters according to exit polls. Deal with that consequence, Scarecrow.

Eye wonder
Eye wonder

If Democrats had actually completely shut down the nomination process - as the Republicans have now done in an unprecedented move - then your argument about Dem hypocrisy might hold some water. But they haven't. What they have done is posture in an effort to move the President in the direction of nominating a more moderate candidate. You may want to have that myopia looked at, Kyle.

What McConnell is doing now is not a surprise and is of a piece with his (and the GOPs) strategy vis-a-vis Mr. Obama from Day 1. It constitutes a complete derelection of duty and one that the GOP (or whatever emerges from its ashes in the future) will be most ashamed of. 

But your conclusions are correct - i.e., McConnell is playing with fire, doesn't have a good hand, and may be the reason conservatives end up with another liberal justice on the Supreme Court rather than a moderate one.

"Justice Obama." I, for one, like the sound of that, but as much as it would be worth the wait, my preference would be for Mr. Obama to nominate Sri Srinivasan and for the Senate to discharge its duty properly and in good faith to confirm him.

JamVet
JamVet

Wow.

I had to look three times to confirm I was at the right page!

Kyle is for sure off the Republican rez now!

Great stuff.

Well considered and reasonable conclusions.

To the point where you are being declared a Democrat by those who have no idea who you are...

lvg
lvg

Excellent article by Kyle  especially the last line. Rumor has it Obama may pick a moderate Republican who is a governor.MConnell may have to stick his head back in his turtle shell. Elena Kagan who was Obama's second nominee was recommended by Antonin Scalia. So all the political rhetoric is just that. Remember Justice Kennedy was approved 97-0 in Reagan's last year and he is not a flaming liberal.

xxxzzz
xxxzzz

@lvg And if you think Obama would allow a moderate Republican to get put on the Supreme Court, there is a bridge in Arizona that Donald Trump wants to sell you...

A guy posting a comment
A guy posting a comment

"They don’t call Republicans the “stupid party” for nothing." is nothing but worthless Democratic trash talk. Grow up and maybe you'll move past the name-calling phase of elementary school. Calling someone "dumb" or "stupid" is as juvenile of an argument as it gets.

JeffreyEav
JeffreyEav

Work with Obama? What a novel idea. I think that falls into the devil you know . . . category. Hey he might nominate Harriet Myers. W's old DUI attorney.

RoadScholar
RoadScholar

Kyle you take on the comments made by McConnell are spot on! 


But let them wait and see.....President Clinton appoint Justice Obama to the court. Take your pick...Barrack now or after Michelle is appointed. Imagine that....a married couple of SC judges!  


Did I hear a few cons pass out and hit the floor?

Mr_Snarky
Mr_Snarky

Wise words...likely wasted like pearls cast before swine.

Hedley_Lammar
Hedley_Lammar

  is to ensure a lame-duck president does not try to throw the court out of balance on his way out the door.


Is there such a provision in the constitution. If so I cant find it.


And you are right. With Hillary in the WH and the Senate back in Dem control they wont get as moderate a candidate as they will if they play ball with Obama.


I'm reading that the GOP Governor of Nevada is on the short list.