Sunday, February 21, 2016

Lame Duck

Within only a few nano-moments of Justice Antonin Scalia being pronounced dead, the august Republican Senate Majority Leader Mitch McConnell of the great state of Kentucky announced that he would not allow the President’s nomination to fill the vacancy on the Supreme Court to come to the Senate floor for advise and consent.  Putting aside his obvious-to-nearly-everyone-in-the-country political reason that the sitting President is a black Democrat whom he has battled from the gitgo, he asserted that President Obama was a Lame Duck President, and that it was therefore the President’s job to wait for his (Republican) successor to nominate the next (conservative Republican) Associate Justice, some eleven months and change from now. 

Unprecedented?  Yup.

But let’s spend a few words talking about his reason for delay: President Obama is a "lame duck" President.  But he is not a lame duck President.  He will become a lame duck when his successor is in place (look it up!), the morning after Election Day, Wednesday, November 9th, 2016, more than eight months from this writing.  (Lame duck Presidents use this two and a half months’ time to help transition the President-Elect into office.)  Allowing for definitions to change (because Mitch McConnell is a powerful man), we might choose to see the lame duck period as the time that a sitting President in his second term has to contend with a Senate and a House of the other party, that is since January of 2015 – more than a year ago – or, worse, since the day after Election Day in 2014.  Is McConnell really saying that?  That President Obama has been a lame duck for the entire last half of his second term, that he should sit on his hands for two years, or go on extended vacation in Hawaii, with full pay?

If I were Mitch McConnell’s Democratic counterpart (Harry Reid at the moment), I would go up to him and say: “Mitch baby: as long as there are 40 Democrats in the Senate (and 1931 was the last time that there were fewer than 40 Democrats in the Senate), we will make sure that none of your guys gets confirmed as Scalia’s replacement.  See ya.”

Partisanship is always ugly; sometimes it is supremely stupid.  The Supreme Court will have a full bench of nine justices before 2016.  My 2¢ worth!

And, lest anyone think that I am herein expressing blanket approval of my President's time in office, please put that thought out of your mind.  I just hate it when a politician who does know better lies to the American people because he knows that he can get away with it because so many Americans are just plain politically ignorant.  Burns my Puritanical a$$!

Addendum: Wednesday, 02/24/2016
Leader Mitch McConnell has changed his tune.  The name of his tune anyway.  Now his tune is no longer called “Lame Duck,” now his tune is called “Election Year.”  The reason why the Senate should not consider filling a vacancy on the Supreme Court is – it is an election year!  McConnell and Senate Judiciary Chairman Chuck Grassley have found some friendly Democratic witnesses to help make their case.  Apparently, both Joe Biden (who was chair of the Senate Judiciary Committee at the time) and Chuck Schumer said the same thing years ago.  Grassley and McConnell call what Biden said back then "the Biden Rule" (a fairy tale: there is no "Biden Rule," it was a floor speech – with no name).  As opposed to what they were which was partisan posturing, just like what McConnell is doing now (as President Obama has not nominated anyone, we don't know if McConnell and Grassley are bluffing, or playing a straight hand).  We shall see.

However.

Both quotes were made at times when there was no vacancy.  In other words, they were purely hypothetical and typically partisan.  And with no serious context.  Next, Biden made his remarks in June of an election year, not February, and the notion was first floated by Strom Thurmond in 1968.  In June, not February.  Finally, as I have already indicated; it is unprecedented, it has never been done before.  Never has the Senate ever refused to consider a nomination to fill a vacancy on the Supreme Court.  Never.

Can McConnell do what he threatens?  Yes, of course, he has the implicit Constitutional power (in other words, the Constitution does not say explicitly that he can’t do it).  But in a representative democracy, our representatives are expected to have good reasons for what they do besides party politics.  And if “Election Year” is a reason, it is a bit far-fetched.  Could not “Election Year” be extended to “Presidential Campaign Season” which began in early 2015.  There is no real limit on what someone can invent to justify not wanting to consider a Supreme Court nominee because he is from the other party.  It all comes down to how the people react to the political shenanigans.  In the end, if the people don't make a big enough noise in protest, a senator, or a party, will have its say, over the say of a sitting President with nearly a year left in his tenure.

So, what might we do with this precedent?  Why, Republicans can try anything that they want, as long as the people do not register their disapproval loudly enough.  There is nothing in the Constitution that forces consideration of a Supreme Court nominee within a specific time frame.  Therefore, they can refuse to consider any and all nominations indefinitely, until they have a sitting President who gives them a nominee that they want.

But of course, the Democrats are not powerless.  For starters, as of this writing, Democrats have a slightly better shot at the White House than do Republicans.  Hillary and Bernie poll a little better than Donald and Ted and Mario.  At the moment.  Next, there is no reason in hell that the Democrats couldn’t play “get even” and refuse to let any nominee go forward until they won back the White House themselves, in four more years, in eight more years.  All they need is 40 senate seats and the word “filibuster.”  If I were Harry Reid, I’d lay my cards on the table and threaten McConnell with retribution (aka poetic justice) (see above).

Finally, McConnell is merely playing for time.  It would be much more acceptable if a nominee was sent to the Senate, was considered by Judiciary, and Judiciary voted to reject the nominee.  It would be much more acceptable if a nominee was sent to the Senate, was considered by Judiciary, Judiciary voted to send the nominee to the Senate floor for consideration, and the Senate rejected the nomination after months of due diligence.  The longer McConnell can hold off considering a nominee at all, the shorter the Senate will have to consider a nomination.  That is McConnell’s game: to stall for time.

Will McConnell get away with it?  If you have read my book, if you have read my blog, you know where I am going with this question.  The answer to the question is: it is totally up to you!  This is a democracy. and in a democracy the people get the government that they deserve!

Addendum: Thursday, 02/25/2015
Senator Mike Lee, a first term Republican senator from Utah, whose main claim to fame is being a Ted Cruz clone, inched his own 2¢ piece into this argument yesterday.  He added a new wrinkle to the debate: he suggested that even if the Senate did advise and consent over the President’s nominee, there would hardly be any advantage for the Court as the new justice would not be able to help them out any more than if the Senate waited until the next President acted.  His idea is that Senate confirmation would take a while (70 days on average) and while the new justice might join the Court in mid-May, the Court’s session ends in late June, only six weeks later.

A cogent point!  Until one examines the alternative.

Should the next President get to nominate the new justice, that nominee would join the Court in mid-April of 2017 (assuming the same 70 days for confirmation), giving the Court a full panoply of justices for some ten weeks.  On the other hand, if President Obama’s nominee were already in place, the Court would be full from mid-May through late June of this year and from the 1st Monday in October this year through late June next year.  In summary, the Court is in session from early October through late June, roughly nine months.  By the end of the 2016-17 term, Obama’s nominee would have served six weeks plus nine months, while a new President’s nominee would have served a total of ten weeks.  44 weeks vs. 10 weeks.  Not much difference according to Mike Lee.

Is Mike Lee stupid?  I don’t think so.  He is a politician, and his business is getting re-elected.  He will say what he thinks he can get away with.

Beware!

Addendum: Wednesday, 03/16/2016
I don't know how noisy the people have been writing their senators and their big city newspapers.  But at least five nation-wide polls have been conducted on the subject, one by Rasmussen Reports (02/17), another by Pew Research Center (02/21), a third by CNN/ORC (02/27), a fourth by Wall Street Journal/NBC News (03/06) and a fifth by Washington Post/ABC News (03/06) (q.30).

All of these polls show the American people supporting the President, not the Republican Senate leadership.  Does the Republican Senate leadership care, will they carry out the people's will?  Don't count on it.  It is much more important that YOU make some noise so that they hear YOU.  In the end, they will do your bidding if they hear you.  Make sure they hear you.