Tuesday, February 16, 2016
Republicans Will Not Release Their Stranglehold On The Supreme Court (Ever) Without A Fight
Unlike Democrats, who by and large believe in democratic rule -- i.e., legislative solutions to governing -- Republicans rely on a gerrymandered House of Representatives and a conservative Supreme Court to obstruct liberal initiatives and ensure that their own unpopular policy positions are enacted or upheld -- from allowing unfettered campaign contributions and unrestricted gun rights to gutting environmental regulations and impeding reproductive rights. And so, they have aggressively and successfully agitated for a conservative federal judiciary for decades -- and they will not release their stranglehold on the high court without a bitter and prolonged fight.
President Richard Nixon's appointments to the Supreme Court, notably Warren Burger, William Rehnquist and Lewis Powell (he also appointed Harry Blackmun) put an end to the liberal Warren Court, and ushered in a conservative majority that ever since has been increasingly more favorable to corporations, law enforcement, landowners and gun owners, and more skeptical to voting rights, civil rights, reproductive rights and LGBT rights. And while there have been a few critical victories for liberals over the last few decades, the conservatives have long been in firm control of the Supreme Court.
And there you have the basis for the right wing apoplexy on contemplating Scalia's replacement. Imagine what the Court would look like if Scalia's seat is taken by a liberal-leaning justice. Suddenly, Justice Kennedy, the conservative Reagan appointee who occasionally votes with the liberal bloc, will no longer be the coveted swing vote. That role will go to Justice Breyer, a left-of-center Clinton appointee. And just like that, right wing fevered dreams of overturning Roe v. Wade, eliminating the concept of one person one vote, sabotaging Obamacare, destroying the financial capability of labor unions, and restoring the ban on same sex marriages would be gone.
So Republicans have come up with ludicrous justifications for thwarting the next nominee, whoever it may be. First, there is the argument that a justice should not be confirmed during an election year. Except 14 justices were confirmed in election years, including Justice Kennedy, who was unanimously confirmed in the last year of President Reagan's second term by a Democratic majority.
Then there is the idea floated by some that any nominee to replace Scalia should be a like-minded conservative. Tell this to the first President Bush, who replaced Thurgood Marshall with Clarence Thomas.
Most recently, the constitutionally-challenged Rand Paul has argued that Obama should not be permitted to appoint a Supreme Court justice because he has a conflict of interest.
Finally, of course, there is the Bork excuse. Republicans like to argue that it was the Democratic Party that started politicizing Supreme Court nominations when they defeated Reagan's nomination of Robert Bork to replace Lewis Powell in 1987. But Bork was no mere conservative. He was a radical jurist whose views on the federal role in protecting civil rights, voting rights and reproductive rights were quite far outside the mainstream. Importantly, while his nomination was scuttled after an incredibly contentious confirmation hearing (with 6 Republicans voting against him, by the way), Reagan's subsequent appointees -- Kennedy (who was nominated after Bork's defeat) and Scalia -- were confirmed, as were the extremely conservative nominations of the two presidents Bush.
Even if Senate Republicans deign to fulfill the letter of their constitutional responsibilities by holding hearings on Obama's nomination(s) or those of his successor, it is hard to imagine the current Republican Senate approving any nomination that is left of the current swing justice, Justice Kennedy, under any circumstances -- an obstructionist position that has no historical precedent.
And keep in mind that not only is there one current vacancy to fill, but there soon may be more. Justice Ginsburg is 82, Kennedy is 79 and Breyer is 78.
If Hillary Clinton or Bernie Sanders wins the presidency, the Democrats would theoretically have a chance to maintain a liberal majority on the Court for a generation or more. (Conversely, a Republican president would take us back to the Dark Ages -- or at least the pre-New Deal 1930s -- for the foreseeable future.) But Republicans have shown throughout the Obama Presidency that they will go to whatever lengths are necessary to thwart any hint of a perceived liberal agenda -- and they have rarely paid the price. Their base loves it, the mainstream press ignores it, and the Democrats seem unable to do more than whine.
The only way to stop the Republicans from preventing a long overdue shift in the Court's balance of power is to elect a Democratic president AND ensure a majority of Democrats in the Senate. This makes the battle for the presidency more important than ever. But don't forget the Senate where the Democrats need to pick up at least four seats. There appear to be six seats currently held by Republicans that are within reach --Wisconsin, New Hampshire, Illinois, Ohio, Florida and Pennsylvania. (Colorado and Nevada, currently held by Democrats, are also in play.) Let's get to work.