The February death of Justice Antonin Scalia, the Supreme Court’s most devout conservative and “originalist,” disrobed the last layer of congressional professionalism and laid naked the ugly partisanship plaguing Capitol Hill. The former justices’ body was practically still warm when Senate majority leader Mitch McConnell declared, come hell or high water, President Barack Obama’s replacement nominee will never be confirmed in the Senate. Of course, the nominee was not yet nominated. It’s kind of like judging a book by its cover—before actually seeing the cover. Politics, it seems, have descended into pulp.
For the past seven years, republicans have responded to Obama’s agenda like a drug, reducing the party manifesto to a single, terse declamation: Just say no! Their obstructionist bent has curved so intensely the GOP now opposes many ideas they themselves were first to espouse, like campaign-finance reform, healthcare reform and immigration reform. It’s not about what you fight for, apparently, but who you fight against. And in the battle for the court, the fight is getting dirty.
Before making his first appointment to the high court, Obama said he would nominate someone with “that quality of empathy…who understands that justice isn't about some abstract legal theory or footnote in a casebook."
For many robotic republican ideologues, this sounded a little too human. So, when Obama nominated the Bronx-born Sonia Sotomayor, senators relentlessly badgered her for the “empathy” she never claimed to have.
Senator Chuck Grassley said: "President Obama clearly believes that you measure up to his empathy standard. That worries me."
Jeff Sessions, Judiciary Committee chairmen, scolded, "Empathy for one party is always prejudice against another."
The president’s second nominee, Elena Kagan, was brutalized during her confirmation hearings for a decision she made as the Dean of Harvard Law School to bar military recruiters from using the school’s career services office, having to recruit instead through a student veteran group.
Sessions said she was “treating the military in a second class way.”
Kagan responded that she made the decision because the military’s “Don’t ask, don’t tell” policy, which prohibited openly gay service members, ran counter to the school’s anti-discrimination policy.
Kagan was nonetheless confirmed, receiving nine republican votes, while Sotomayor before her received a whopping five.
However, power has since shifted to the republicans, who now control a firm majority in the Senate, meaning the next justice won’t pass with only five votes from the right side of the aisle. The way things look now, the current nominee won’t be getting any votes—from either side—because there won’t even be a hearing.
Obama has nominated Merrick B. Garland, Federal Circuit Court Justice appointed by Bill Clinton. But McConnell and others are calling the president’s attempt at filling the Scalia vacancy “unconstitutional” because they claim Obama is a “lame-duck” president.
But not only is it Obama’s constitutional prerogative to nominate a successor, it is the Senate’s constitutional duty to “advise and consent” the nomination, a process that McConnell himself described the last time around as one of the Senate’s “most solemn duties, a thorough review of the president's nominee to a lifetime position on the highest court in the land."
Albeit, that was when democrats had the majority. Now that republicans have the upper hand, they’ve decided to prevent a hearing from taking place at all, which is, well, lame, if not unconstitutional. GOP leaders have issued a summary judgment: Garland guilty by association.
Perhaps it’s all part of a larger strategy—shrinking the size of government, one justice at a time. So, as the court’s number withers, it won’t matter how poorly or unconstitutionally the congress does its job, because there won’t be any justices around to prove it.