An Elastic View of Constitutional Responsibility

Okay–This week, it seems appropriate to talk about the late Justice Scalia, the battle over his replacement, and his much touted (albeit misunderstood and selectively applied) “originalism.”

Today, let’s consider where we are in the process for replacing Scalia.

Republicans in the Senate–notably McConnell and Grassley, who heads up the Judiciary Committee–have said they will refuse to participate in the Constitutionally-described process of “advice and consent.” Their argument, apparently, is that because this is an election year, and the President is in the last year of his tenure, he shouldn’t nominate a successor.

Between 1796 and 1988, at least 14 Justices have been confirmed during election years.

According to legal historians, Senate Republicans would have to reach back to the mid-1800s to find an instance in which the Senate blocked a nominee for reasons having nothing to do with the individual who’d been nominated—that is, just to obstruct the sitting President.

As a post from the Brookings Institution put it: the Republicans’ behavior is a repudiation of both the Constitutional separation of powers and the Constitution’s definition of a Presidential term.

And I thought they claimed to be “strict constructionists”!

The bottom line is that there is simply no precedent for the Senate refusing to discharge its constitutional duty to advise and consent, and if I had to guess, I would predict that McConnell et al will back away from that refusal once they recognize the extent of the political risk involved. (Of course, I’ve been wrong before when I have predicted rational behaviors from crazed partisans…)

Tomorrow, a decidedly critical consideration of Scalia’s controversial jurisprudential legacy…..


  1. The Republicans behave like spoiled little children that throw tantrums when they don’t get their way and ‘constantly change the rules of the game’ if they are losing. They are disgustingly vicious rabid dogs.

  2. Well, I believe it’s more historical than anything. The President in their eyes is only 3/5 of a person so his nomination is good for 3/5 of his tenure. Get my drift?

    Hypocrites! All of them.

  3. Sheila’s comment “The bottom line is that there is simply no precedent for the Senate refusing to discharge its constitutional duty to advise and consent, …”; this issue is but one example of a long list of “no precedents” regarding the Senate and the House during President Obama’s administration. The reaction stated by McConnell, Grassley, et al, is exactly what was expected by both parties when the news of Scalia’s death was announced. This could become another major issue the sitting Congress has abused their authority to halt all forward action by President Obama because it IS President Obama. The 60 plus votes to repeal or defund the ACA is an embarrassing precedent that has yet to be rivaled – or ended – during any sitting president’s administration. There is less than one year for them to sit in a holding pattern; refusing to even consider his replacement submission. Another example, has any other president had to deal with Congress refusing to even LOOK at their submitted budget?

    Scalia’s death is a major loss to the GOP and a major opportunity to abuse their power of obstructionism regarding his replacement until after November 8th…unless we have another bogus “recount” to decide the presidency. Scalia’s views were leftover from early in the 20th Century; the GOP will drag his body through the remainder of this year, SCOTUS will continue his outdated views and Scalia will retain his racist, bigoted powers though dead and buried.

  4. Bork, a good name to remember for all of the lying being repeated by the usual liars. A better view than that of a crabby lady. A lightweight law prof can choke on the first paragraph and never get past it. Reasonable folks might want to connect the dots and plow past the chicken bone stuck in her throat.

  5. OMG; till there is a 4-4 vote on upcoming vital issues…such as voting rights in an election year!

  6. Lets be clear. They HATE our President with a passion. Their refusal is all about WHO is in the White House. They started this on the day he took office. They had a meeting. They had a plan. It will continue.

  7. “The bottom line is that there is simply no precedent………………Of course I’ve been wrong before when I’ve predicted rational behavior………”

    The most important precedent we’re dealing with is the Tea Party a crypto-fascist like movement inside the Republican Party with millions of diehard supporters who for the most part are highly racist and anti-Semitic. They’re not going to change their direction. They’ve got the Democratic Party just where they want them at the moment: a “slugfest” between a woman and a Jew.

    Ted Cruz is already vowing to prevent President Obama from nominating a new Justice on the Supreme Court. How many Republicans do you think are going to be “sacrificial lambs” to step in on this highly controversial Issue?

    The real issue confronting America is whether or not there is THE WHEREWITHAL to stand up against the Tea Party? If there isn’t. Then prepare as best you can for a Republican President.

    where’with-al’ n. the necessary means, esp. money: usually with “the”

  8. The Republicans have sunk to a new low with the pledge to refuse action of any kind on a Presidential nomination, dictated by the Constitution, to fill a vacancy on the SCOTUS. If they continue the obstruction of the President’s obligation to fill that vacancy, it will mean that there will be no new justice until AFTER a new President is sworn into office. There would not be full roster on the SCOTUS for at least a year (if the incoming President names a nominee in his first day in office) and gridlock in the court, just like in the Congress. They will have effectively shut down the government once again. Even more alarming is to consider that if either a woman or a Jewish man are elected and their dereliction of duty continues, it could be much longer.
    As a side note, the extreme right delusional conspiracy theorists are already floating their opinions that the President had Scalia killed and that there is a coverup orchestrated by the Democrats. Apparently, they need to put their figurative finger into the wound to prove that he died of natural causes, not foul play.

  9. I wonder who might have standing to bring suit against the Senate if they refuse to consider a nominee for the SCOTUS vacancy? This is something that needs to happen to return functionality to the Congress.

  10. If nothing else; the past seven years of racism, bigotry, anti-Semitism, anti LGBTs, war on women, voting rights restricted and our elected officials bought and paid for by the 1% in this country – it has made us aware of flaws in the Constitution of the United States of America and it’s Amendments which we have praised and trusted since they were put in place by the founding fathers. It has been replaced by the Bible as interpreted by pseudo Christians with the power to enact laws to best protect their personal interests.

    I look forward to tomorrow’s blog; Scalia’s “controversial jurisprudential legacy” is followed by the other old men on SCOTUS who intend to drag us back into the last century. While I felt no elation at the news of his death, or anyone on the GOP side of the aisle, for a few blessed minutes I viewed it as an opportunity to return SCOTUS to it’s position to protect and serve Americans and uphold what we believed the Constitution was meant to be. Instead; we thinking Americans are now in a position to be pushed over the edge of the flat earth society’s view of the world. Beyond here there be dragons! We ain’t seen nothin’ yet!

  11. I’m about as far from a legal scholar as one can get but my mind just can’t get around Scalia’s purported massive intellect and belief that government is above the times – that the product of those times and those minds by apparently good fortune cannot be improved on by these minds and these times (except of course for DofC vs Heller where presumably the wrong words got somehow mistakingly substituted for what the founders really thought).


    Republicans who worshipped Scalia now want to throw his massive intellect under the bus because it’s inconvenient for them today. Just as science is, the actual words of the second Ammendment are, the concept of democracy is and the voice of the people, Congress, has been.

    It’s a full blooded revolution in America to create a new and foreign country in spite of the Constitution that their hero, Scalia, purportedly held too dear.

    ISIS in America???

    There is still one critical difference between here and Syria – one day that stands between our prospects and Syria’s reality – Election Day.

    Anyone who stays home on that day is not paying attention and just doesn’t understand the stakes.

  12. Marv, “Just wait. You ain’t seen nothing like what’s coming”

    From my ongoing warnings about the vulnerabilities of Bernie Sanders, I can understand why there should be thoughts that I’m anti-Semitic. That’s understandable.

    While in Dallas as an attorney, I represented the leaders of both Muslims and Christians from the Middle East in their discrimination cases. On the other hand, I also represented the Jewish community in attempting to solve their discrimination problems.

    A short twenty year List off my head:

    1970-Advisory Board of the Anti-Defamation League in Dallas.
    1972-Board Member of the American Jewish Committee in Dallas.
    1979-Lead Spokesman for the American Jewish Congress in Dallas
    1981-At the request of Jewish Family Services in Dallas, I successfully represented pro bono all the Jews and Baha’is in both Texas/Oklahoma in their amnesty cases originating out of Iran.
    1988-The Jewish War Veterans decided that I should be their Spokesman instead of the ADL in Dallas.
    1988-Prevented Ariel Sharon from entering the U.S. and visiting Dallas because of his involvement in the massacres at Sabra and Shatilla refugee camps. [That was personal]
    1990-I was asked by Rabbi Abraham Cooper Co-Director of The Simon Weisenthal Center located in Los Angeles to head up their national fund-raising division. [I refused]
    1991-Returned to Jacksonville my hometown.

    I really believe, when it comes to anti-Semitism I know what I’m talking about. I might be off a year or so as to the specific year of my involvement. I have the specifics in my files. All my records are still in my hands and copies are with my trusted friends.

    The bottom line is that since 1967, the Anti-Defamation League has let anti-Semitism, especially in the Deep South, go “WILD” in order to appease the Evangelical Christians in the Christian-Zionist Alliance and their representatives in Congress. And the ADL has done everything they can to keep it quiet short of murder. At least, I believe up until now.

    It’s called a MODUS VIVENDI.

    This MISPERCEPTION can cause major MISCALCULATIONS in the run-up to electing our new President in the United States. I’m neither for nor against Bernie Sanders. However, I believe he is the most ETHICAL of all the candidates so far. That will probably be his undoing.

    un-do’ing n. l. an annulling 2. a bringing to ruin 3. the cause of ruin~Webster’s New World Dictionary

  13. Now leave it to the wing nuts to put their own spin on everything in a predictable way: Scalia’s death was a conspiracy. I suspect that when anything happens in Texas, the rules, or lack thereof, will be a little different, and enable the imaginations of conspiratorial folks. The Washington Post reports the “concerns” of some people which, when combined, spin quite a yarn. Give a rock to these people and they will fashion it into a mountain. They never let go.

  14. You can see why conservatives are so afraid of the democratic socialist President and committedly liberal SCOTUS that their extremism brought on them. When all is said and done that combination will reveal that what they’ve become is the antithesis of American and they are now the Communists that Joe McCarthy was chasing in the 40s and 50s.

    Our enemy is and has always been extremism itself not any particular flavor if it.

  15. Pete,

    “Our enemy is and has always been extremism itself not any particular flavor….”

    You’re right on. However, the big difference, this time, is that since 1970 they have had the benefit of over $10,000,000,000.00 [ten billion] to fund their “right-wing think tanks.”

  16. Marv; I did not read your comments about Bernie as being anti-Semitic, but rather pointing out to readers that his religion would be an issue with some voters. We must accept that as fact as we had to face as fact that Barack Obama is biracial. If elected; he will be facing the same enemies President Obama stands toe-to-toe with 24/7. If the Jewish religion was good enough for Mary, Joseph and Jesus; it is certainly good enough for this old Baptist. I hope and pray he will win the nomination over corporate America and that he will succeed President Obama on January 20, 2017.

    I will feel forced to vote for Hillary should she be nominated; what stand will she take on the issue of replacing Scalia on SCOTUS? How firm will she stand against the current Congress who have made their decision to prevent any appointment till after the election? If Republicans take (or buy) the White House; will she stand strong to repeal Citizens United? I find Bernie’s aims to be the salvation of the American people along with returning the government to us. The grasp of corporate American on the masses is a choke-hold; if elected will Hillary fight for us or to maintain the status quo of Wall Street, will she fight to repeal Citizens United – supported by Scalia and his cronies? To “put her money where her mouth is” is not in the best interest of the American people. It maintains her stand with corporate America – a primary problem for this country.

  17. “….what they’ve become is the antithesis of American and they are now the Communists that Joe McCarthy was chasing in the 40s and 50s.” One of the more profound and ironic insights I have read about recent developments. This is the kind of situation you find in the great tragic literature.

  18. Pete,

    “I should have added……by buying fossil fuels from them.”

    You’ve hit the target. As a former artillery officer, I would strongly suggest that we must neutralize the Koch Brothers before we can have a chance to save our environment or our Republic, or both.

    The Koch Brothers are our modern day “Shylocks.” Let them sue me. But they won’t. They don’t have the “guts.” They have nothing more than their money. Excuse me, I mean their father’s and their grandfather’s money.

  19. McConnell and the others like Cruz, will not take any heat from the Republican Base over refusing or foot dragging on President’s Obama’s potential to offer a replacement for Scalia. It is the Republican Base McConnell, etc., must appease. This is like raw meat thrown into a cage of hungry lions.
    The Republican Base will judge based upon how much obstructionism can be accomplished. The loudest voices to oppose the President will be rewarded.

  20. Here’s a funny/not-funny post I saw yesterday on a blog I follow:

    “But how are they supposed to decide on the next president if the court’s split evenly 4-4?”

    It could happen.

  21. The Republican Senate has already failed to approve or even hold hearings on most Obama’s appellate judge nominations to frustrate the will of this President and all those who voted for him. It seems the Senate elasticity only stretches to the right.

  22. Ron,

    “Here’s a funny/not-funny post………”

    IT’S just one horrible “joke” that’s being played on us, all of us: Democrats as well as Republicans.

    Back in the 20’s in Chicago two brilliant University of Chicago students, Leopold and Loeb, decided to commit the perfect murder. They almost succeeded. By mistake, one of them dropped his glasses at the scene of the crime.

    Back in the 60’s in Dallas, Gordon McLendon the son of a multi-millionaire and Bunker Hunt the son of the then richest man in the world H.L. Hunt decided they would plan the perfect “right-wing takeover.” In those days, IT was called “jerking people off.” IT was all a big joke at least in the beginning. We’re now 45 years downstream.

    I was General Counsel of McLendon’s corporation at the time. A few years before that I had been one of three attorneys for the Treasury Department who successfully sued H.L. Hunt in the Tax Court of the United States. I knew both families from the inside. I knew something was “very fishy” going on at the time and resigned as General Counsel of the McLendon Corporation. And have been tracking IT ever since. IT has to be accurately described. Fortunately, many people can now, at least, feel IT.

    We have to confront the Koch Brothers. They’ve “picked up the ball” from McLendon/Hunt who are both deceased. All of the families were “Birchers.” The Koch Brothers are very close to scoring the winning touchdown.

    Gordon McLendon was a famed radio sportscaster, “the old Scotsman,” for both baseball and football. He “recreated” the games. He wasn’t present at the stadiums.

    You didn’t have to be present in Nazi Germany to “recreate” their racial hatred. That’s exactly what Mclendon did with his buddy, Bunker Hunt, who was widely known as the most influential person in the Southern Baptist Convention.

    Earlier today I purchased a new URL: Someone, or better some group, needs to talk some sense into these people in a language they understand before it’s too late.

  23. Prediction – Inauguration Day, 2017. President Hillary Clinton (or Bernie Sanders) takes the oath of office. The Republicans leaders announce, that this is the first day of the “lame duck” term of the President and they can’t possibly vote on any potential court appointments — at least until a Republican becomes President.
    I hope I am wrong.

  24. Serious question: how/when did the Senate duty to “advise and consent” become an institutional requirement for an affirmative confirmation vote? Suppose a president (any president) were to send the Senate a nomination, along with notification that any official objections must be issued within a reasonable time period, say 90 days. Failure to take a floor vote, or failure to obtain 51 votes to officially “withhold consent” would result in the nomination being made official. How did we come to the presumption that non-action is the same as non-consent?

  25. Republicans are working their way through government like Sherman through Georgia destroying everything in sight. They have dismantled Congress, threatened the Presidency and are now holding SCOTUS hostage.

    They no longer qualify as a legitimate political party.

  26. Pete: “Our enemy is and has always been extremism itself not any particular flavor if it.”

    Your posts are my favorite reading. I’m disappointed on days when you’re absent.

    I know you would also be able to argue what an important friend extremism has been in American history, perhaps how some militant contrary extremism could be useful now in response to extremist Republicans.

    Is it extreme to propose that Mike Pence, the poster boy of extremism, have his illusive intelligence to take his deserved fall now instead of appearing on the ballot in November?

  27. Yes, unreasonable obstructionism is deplorable.
    Of the remaining justices of SCOTUS, two were nominated by Clinton and two by Obama.
    The other four were nominated by Republican POTUS.
    They were all qualified and were approved by the Senate on behalf of the people.
    May we assume they are all patriots who will vote their consciences on specific issues brought before them, remembering that the bulk of their work is done by “clerks” who may be better qualified than they (including Thomas who almost always voted in lockstep with Scalia)? If we’re worried about an upset to this “balance”, we should be sure to elect the best candidate for POTUS in November. All the rest is “sound and fury signifying nothing”.

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