“Strict Constructionists” and the Supreme Court Vacancy

I’ve posted previously about the absolutely stunning refusal of the Senate GOP leadership to do its job and hold hearings on President Obama’s nominee for the vacant Supreme Court seat.

I know I’m being repetitive, but I can’t stop thinking about the degree to which that intransigence symbolizes an ominous breakdown of governance in this country.

It isn’t that we haven’t gone through dangerous times before. We had a civil war, and the 60s certainly weren’t all Woodstock. The Gilded Age, the Depression–we can all come up with examples from history. (Or maybe not, since so few people seem to have studied history–but the examples are there.) What I don’t remember is a similar degree of hypocrisy and flat-out lying by people in public office who are so transparently following their own immediate self-interest to the detriment of their constitutional duty and the common good.

These are the people who constantly tell us how devoted they are to the Constitution–at the same time they are refusing to follow its prescriptions. These are the people who piously invoke tradition, then lie about the history of Supreme Court appointments during election years. (Not to mention plucking and parroting a single sentence from a speech by then-Senator Biden–a speech that in its totality said something very different than their chosen sound-bite would suggest.)

These are the people who accuse the President of being “divisive” when he discharges his clear duty under the Constitution–at the same time that they are politicizing the Court by refusing to discharge theirs.

Do they think no one notices? Worse, is it possible that they’re right, and most people don’t?

In a scathing column in the Huffington Post, constitutional scholar Geoffrey Stone was blunt:

It is time for the Senate Republicans to back off and to act like responsible grownups who recognize that they have a solemn obligation to act according to the rule of law. If they don’t like that, then perhaps they should just resign their positions and let the nation get on with its business. If they move forward with their cynical and hypocritical plan, they will be guilty of a coup d’état of epic proportions.

How did we get to this point? How did these people get elected? What toxic mix of civic ignorance and apathy, political money, gerrymandering and raw racism has brought us to a place where a fascist buffoon is likely to be the Presidential candidate of a major party, and the legislative leadership of that party insists on elevating its partisan interests above the both the law and the national good?

How did a once-great party become so small, and how did the rest of us allow it to happen? And what does this unprecedented obstruction mean for the future of the American experiment?

I don’t know about the rest of you, but those are the questions that are keeping me up at night.


  1. Anyone care to respond to the fact that it has been a century and a quarter since a Supreme Court justice was appointed during an election year and both parties have obstructed such appointments?

  2. I wonder about the same things. Can what seems to be happening really be happening?

  3. “How did we get to this point? How did these people get elected? What toxic mix of civic ignorance and apathy, political money, gerrymandering and raw racism has brought us to a place where a fascist buffoon is likely to be the Presidential candidate of a major party, and the legislative leadership of that party insists on elevating its partisan interests above the both the law and the national good?”
    I think the average voter in this state knows more about sports, beer or the latest trendy restaurant in Carmel than how our government should work and what their duties are as citizens. If we had a reasonable chance at actually having reliable journalists reporting the news (on ANY venue) it might make a difference. When looking for accurate and in depth reporting on the State Legislature, why do I find it easier to get information from Evansville or Fort Wayne newspapers than from the only paper in the State Capitol? TV news is not news but entertainment interspersed with ambulance chasers’ advertising ad nauseam.
    “It is just that easy”, indeed!

  4. Prof K asked:
    “How did a once-great party become so small, and how did the rest of us allow it to happen? And what does this unprecedented obstruction mean for the future of the American experiment?”
    Good questions to ponder as a once great nation drifts toward fascism.
    I would start with the party deciding that their path to power was to demonize their own government. They make our government the enemy even as they run for office.
    I would also fault the Businesses that CHOOSE to support the disinformation networks with their ads. 40+ Years of Hate Radio and Fox have had the desired affect. (Republican) People are now dumb as hell and mad as hell. The people who OWN the stations and the people who BUY the ads have financed this crazy enterprise. Crazy talk is great for selling things but it is NOT great for our nation.

  5. Thank you Sheila. No reason to be concerned about being repetitive about this at all. This is a monstrous breach that goes directly to the core of our particular brand of democracy, inflicted on us all by people that should know better but obviously don’t. It’s as if the United States government and our political system are teetering back and forth on the top of the Washington Monument ready to fall to the pavement below and shatter into millions of pieces. The slow walking coup de’ etat continues no matter what, led by people that proudly wear American flag pins on their lapels.

  6. What would happen if we have another election year like 2000 Bush/Gore when the SCOTUS had to resolve the election? It’s possible if the electoral college fails to elect the voters choice of candadates, or a dozen their scenarios, what the majority of Americans want is a fair minded, leagelly experienced and scandal free Justice. I believe America has been offered one. It’s our dysfunctional republican senate thats refusing to do their job. But in doing so it will only continue to destroy their already weakened brand. America is watching and acting.

  7. Sheila,

    “How did a once-great party become so small, and how did the rest of us allow it to happen? And what does this unprecedented obstruction mean for the future of the American experiment?

    I don’t know about the rest of you, but those are the questions that are keeping me up at night.”

    They are infected with a “new strain” of the Hitler virus. Unlike in Nazi Germany, it has been released subterranean. Donald Trump is only the “drum major” at this point in time. As he continues to lead the march, the virus will only spread and, in addition, become more virulent.

    PRE-EMPTIVE TARGETED TRUTH (P2T)is the only treatment available at this stage of the epidemic.

  8. Actually, I don’t think the Democratic party has ever obstructed a Supreme Court nomination. Robert Bork’s nomination drew a high level of scrutiny, but he had hearings before the Judiciary Committee and ultimately a vote by the full Senate. Rejecting a nomination is not the same thing as obstruction.

    But what I don’t get is if a “lame duck” president shouldn’t be permitted to make a Supreme Court nomination, then shouldn’t “lame duck” Senators and Representatives be ineligible to vote on legislation etc. between now and the end of their terms in January? As Professor K pointed out, what’s good for the goose is good for the gander.

  9. I note in today’s FW News Sentinel that Governor Pence plans to nominate a new supreme court justice. Hmmm. I wonder if what’s good for the gander doesn’t apply and we should instruct the governor to wait until the people of Indiana have spoken? Isn’t that the McConnell Rule?

  10. From http://www.electoral-vote.com/evp2016/Pres/Maps/Feb14.html:

    • 47 of the 112 justices in Supreme Court history were submitted in the last 18 months of a presidential term.
    • Of those 47, 28 were confirmed, six were withdrawn, three declined the offer, two were rejected, and for eight no decision was made.
    • Just over half of those 47 were placed into nomination by a president whose lame duck status was official.
    • For official lame ducks, it is 11 confirmations, four withdrawals, three declines, one rejection, and five where no decision was made.
    • The average length of time for a decision to be made is 37 days; the longest a nominee has languished is 261 days. There are 342 days left in Barack Obama’s term.
    • Late-term appointments were vastly more common in the 19th century than they are today. In part, this is because justices live and serve longer now, so there is less turnover. And in part it is because the Court’s increased importance over time has caused more justices to strategically “time” their resignations and retirements; rarely does a seat come open in the third/fourth year of a president’s term unless a justice dies unexpectedly.

  11. Why is the fact that this is President Obama’s last year in office the primary reason cited as stopping his appointment of Scalia’s replacement? If there has been no vacancy on SCOTUS, for whatever reason, during any sitting president’s last year there has been no reason to nominate a replacement.

    The Constitution states the president will nominate Supreme Court Judge replacements when there is a vacancy; it doesn’t eliminate his/her last year in office any more than it specifies a minimum time frame to have been in office to qualify them for this responsibility. Doesn’t it take a majority vote to render a decision on cases heard before SCOTUS? With an even number currently sitting, it lessens that chance, can they hear cases at this time or would that leave the possibility of further appeals?

  12. How did it get this way? I’m reading “Dark Money”. It’s very informative and very scary.

  13. One of the reasons that good business people make bad politicians is that for well over a century people whose mindset is primarily redistributing wealth their way rather than serving markets have employed mis-directing people as their fundamental business strategy. Virtually all what we call advertising is sophisticated lying. Virtually every public utterance from business leader’s mouth’s is slanted away from the truth.

    What used to be people supporting each other in their daily dual roles as workers and customers has become way too slick with deception as its basis.

    We’ve become expert in creating alternative pseudo-realities in service of conquering each other.

    Of course the problem with pseudo-reality is that in the end real reality always wins. That’s why slick business oriented people are not only slimy but also inept at government. When’s the last time anyone remembers a conservative political position that actually worked to the benefit of the country? It’s been decades.

    Public service has been brought down by business, for business using what business knows best, deception.

    Look at Ken Glass depending on the artifact that Supreme Court justices typically retire before dying and are typically asked to retire when convenient to their fans to create the pseudo-reality of the Senate owning our Supreme Court.

    Politics is hard. Electing a bad politician is like going to a bad Dr. It has consequences. Let’s return to professional public servants and let business people remain where the consequences of shady business practices are affordable.

  14. I hate to say it, but this is the natural result of unfettered capitalism. Either the people are educated enough to restrain it, or, well, Mr. Marx finally gets to say I told you so.

    I just hope my kids have decent lives.

  15. So if “they” so misinterpret the Constitution, how can “they” be prime interpreters of the much more ambiguous Bible?

  16. Sheila wrote: “What toxic mix of civic ignorance and apathy, political money, gerrymandering and raw racism has brought us to a place where a fascist buffoon is likely to be the Presidential candidate of a major party, and the legislative leadership of that party insists on elevating its partisan interests above the both the law and the national good?”

    Sheila, you assembled the main reasons for our troubled nation in just this one sentence.

    Over the weekend I read that Pence will be nominating a State Supreme Court Justice to replace retiring Justice Dickson. Immediately, the thought popped into my mind that he should not be allowed to nominate anyone for this position since it is an election year and he will (hopefully) not be re-elected. If we follow the congressional Republican mantra of “We must let the People Choose”, then our legislature should refuse to consider anyone that Pence nominates.

  17. What is going on is completely on purpose. They are actually saying, ‘Our party is more important than the country, and we’d rather destroy the country than let an African-American be President, because, you know, he has no legitimacy.’

    “Radical Republicans vs. the Tea Party”.
    The closest we’ve ever come to this before was with Andrew Johnson. They impeached him, thankfully unsuccessfully. They’ve tried to neuter this President, so far unsuccessfully, but the Supreme Court issue is cutting it pretty close.

  18. It has not been a century since a president nominated someone to join the Supreme Court. Reagan did it! The constitution states that it is the job of the president to nominate a judge to replace someone on the supreme court when a vacancy is open. Incidentally, a Democrat dominated Senate confirmed Reagan’s nomination.

  19. I’ve only followed politics since 2007 so this current stuff is seriously weird. Fox Spews even confronted ole Mitch about his stance yesterday which is even more bazaar. (Back in 07, I didn’t even know who was who). I wonder every day if I’ll ever be able to return to the states permanently when I stand by and watch this circus from Europe. And then, I wonder how safe I am here when I can’t hide my American roots and someone decides I might be one of those racist idiots following the GOP because of the political b.s. coming from there. I’ve known for years that politics is messy which is why I never paid attention and now that I do, I’m not sure I can sleep soundly ever again. What the heck is going on over there? And my home state with Pence? I never want to live there again, ever! I’m an American with no home. sniff…

  20. The Establishment Republicans essentially created this Island of Doctor Moreau. The Cliven Bundy’s are useful dupes. The Establishment could probably care less about the Right to Bear Arms in and of itself. However, the Establishment is aware and does care that these Bundy type people are a significant source of profit for the arms manufacturers. Make certain we have 24/7 – 365 coverage of terrorists, and urban gangs, and fear takes over and then more profit.
    The Cliven Bundy’s see Federal Land as Federal over reach. The Bundy thought process serves the purpose of demanding Federal Land be used for commercial purposes. In the end it will not be the Bundy’s who have access to and defacto control of Federal Land, but large conglomerates that will drill, cut the forests down, mine and other wise “develop” the land for a pittance. If the land is polluted the corporation will go bankrupt and leave the mess behind.

    The Bible Thumpers since they have the mind set of the “hierarchy knows best”, are also controllable. The Establishment will lavish campaign contributions on Candidates and Office Holders that espouse family values. When the rubber hits road these politicians can be counted on to vote for Right to Work, and against stricter or enforcement of environmental laws. There is of course the idea of the nearness to the End of Times anarchy which means more firearms to protect the chosen. The Establishment sees a Woman’s Right Choose only in the products they can sell them. The Establishment can align with Right to Life since it does not harm the all important bottom line.

    Both Establishment Political Parties are perfectly aligned on economics. Out source what you can, destroy Unions or neuter them. If the Middle Class is destroyed tell the people taxes are too high because of bloated Government , too many takers, that is why companies are fleeing off shore and hiding profits.

    The political creatures the Establishment created is now rebelling and we have the Island of Donald Trump and it scares the establishment to it’s core.

  21. Sheila, you persist on this issue because you realize it reflects the historical behavior of government systems in steep decline or collapse. The acquiescence arising from a sense of powerlessness, or more crassly selfishness, must be something like the dazed visage before Romans as they watched their hundreds-of-year-old Republic disintegrate from putative savior Julius to disguised Emperor Augustus. The Roman Political Revolution under the guise of restoration. They watched what was left of their Republic vanish to be replaced by a facade with a pro forma painting of an elected, governing Senate, to comfort and placate the vox populi, who chose not look beyond the mural as long as they could keep their immediate pleasures and lifestyles. You cannot call to often, to early, or too loudly for a course correction when the Captain and crew are arguing over deck chairs, the passengers are dancing in the salon, and the ice berg looms larger and larger is the path of the ship, albeit disturbing to everyone not paying attention. We are worse off then the Bourbons because we not only learn nothing from history, we don’t know it and don’t remember it. Keep up the warning call because this is as bad as you fear and as clear an x-ray as you could want of what’s on the other side of the villa’s wall’s mural.

  22. My concern is that extreme conservatives will have created, as a natural reaction, extreme liberals. We clearly were given a working, if imperfect, government. We know how to do this.

    Can we return to what worked from here?

    It will be difficult.

  23. The failure of Mitch McConnell and his Senate cronies to allow a vote for a Supreme Court nominee has not created extreme liberals. It infuriates those of us in the middle. It’s not leftist to want clearly written Constitutionsl language followed. It’s our right as citizens to demand such.

  24. Ken G. So what? Just because it has been done in the past doesn’t it has to be done now? Lets be progressive rather than vindictive!

  25. George Wallace and Richard Nixon enflamed racism and anti-government feelings to gain power. Those feelings ultimately consumed them both.

    History is repeating itself. Donald Trump and Ted Cruz are fanning the same flames to win the highest office in the land. But scapegoating Mexicans, Muslims, Black Lives Matter, LGBT, veterans, women, political correctness, etc. focuses on non-targets and corrects nothing. The Koch Bros. etl al. have created conditions which re-distributed income away from and diminished the middle class and re-set constitutional law to give themselves more money and influence over our democracy through Citizens United and more. Among the sadder ironies is that Tea Party supporters will become ever poorer and powerless under the oilgarchs.

  26. If this mess can actually be reversed, it will be quite a feat. Not only has this situation been produced on a number of fronts by a lot of people through obfuscation and double-speak, there are a lot of true believers who think it’s just fine. It would be a gigantic problem to fix, given an otherwise stable environment, but we are faced with massive climate change and unprecedented environmental disasters that tend to produce fascist and totalitarian governments. I hope some people are keeping good notes about this on paper–electronic data will be wiped out in nuclear events–so people might actually learn something 100 years from now, providing there is something left and there are people who actually want to learn from history.

  27. we get to this point, Sheila, because of hyper-partisan bloggers like you that consider themselves virtuously objective while denouncing the ‘hypocrisy’ of the ‘other side’. But you sit in smug judgment….all the while being just as guilty.

    What exactly do you mean when you say the GOP should “do its job” and HuffPo says “according to the rule of law”?

    Let me help you out with some additional references:


    You see, Sheila, although you don’t realize it, your article is not objective. It is coming from a very biased political viewpoint. And, as such, you are just as guilty of creating the toxic climate of divisiveness that poisons our country as are your political opponents.

    More than anything, we all need a little self-awareness.

  28. Jed, always a good think to bring up a right-wing web-sites to support your party of misfits, irreverent and ill willed ideas, theories and stances.

    And to leverage John Macomb from the Heritage Foundation as a unbiased point-of-view no less.

    Your argument is all misdirection, “Looking over here, no, over there….” and not as you state.

    Its that darn Constitution you love to bath yourselves in (when it supports your gun rights) that has you dead wrong on this responsibility.

    And your party leadership made this ‘delay move’ public before ever consoling his loved ones, all while your ‘hero on the bench’ body was still warm. This just adds to the obstructionism label your party justly deserves.

  29. Jed:
    Jonah Goldberg is certainly not devoid of partisan views – then why cite his blog in defense of objectivity? And the opinion that the Senate does not have to do anything should be very appealing to McConnell et.al. since that’s what they are best suited for and most comfortable executing – particularly the Republicans. It may be a philosophical position to highlight their view that the government is too large, but it seems like it is more consistent with McConnell’s statement that his job was to make sure the president only had one term – something a lot of voters apparently did not buy into.

    And now Jed, the republicans are melting down as a result of the monster they have created and can no longer control; I find it entertaining to watch them struggle.

  30. Hey daleb & Patrick – it was not my attempt to be objective. The point is that extreme bias exists on both sides and our blood sport is to take pot shots at the other side while trying to sound virtuous ourselves. At least, that’s what Sheila was doing.

    Patrick – I’m not sure how the constitution makes me “dead wrong”. Please elaborate specifically.

    For the record, though, if you somehow think that we would not be having the same exact discussion – only the sides being reversed – had this happened in the last year of the GWB presidency, then you aren’t being honest with yourselves.

  31. Jed,

    I disagree with your characterization of Professor Kennedy as a knee-jerk Liberal and un-self-aware. To the contrary, I would ask you if you are aware of your own knee-jerk reaction to her analysis of refusal of partisan faction to “advise and consent” as is their duty under the U.S. Constitution? You responded to her viewpoint, albeit passionate and frustrated, by a personal and ad hominem attack on her character. You delivered a personal critique and accused her of lacking any self-awareness or objectivity. I myself have been guilty of unconsidered responses more times than I can count. Thus, I should be the last to return your response with equal barbs. Instead, consider whether or not your response evidences critical analysis of the facts Sheila Kennedy put forward and the analysis of the implication of such facts? Would you not agree that James Madison, a la Federalist No. 10, would be appalled at a group of partisans rejecting what the Constitution instructs they “shall” do? Madison the Conservative helped craft a system of checks and balances between Executive, Legislative, and Judicial branches to deter just such selfish and partisan conduct, would you not agree?

  32. Jed:
    “What exactly do you mean when you say the GOP should “do its job” and HuffPo says “according to the rule of law”?”

    I Googled the Daily Signal which referred to Article II, Section 2 of the Constitution regarding Presidential appointments and the Senate. The part which interested me was “…and he (the President) shall nominate, by and with the Advice and Consent of the Senate shall appoint Ambassadors, other public Ministers ad Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for,….”

    The term “by and with the Advice and Consent of the Senate” seems to be rendered useless by you, the media sources you cited, Mitch McConnell and the current GOP dominated Congress. There is no mention of the time frame of the president’s administration, only his duties AND THE DUTIES OF THE SENATE regarding appointments.

  33. It’s tough for conservatives these days. Their whole fabric of belief is unraveling and turns out to be a fashion advertised into existance that we now know never worked because it isn’t based on reality.

    Of course mythology is as old as we are but folks in the past had the common sense to only apply it to the spirit world rather than hope that it was actually useful among the living and at the present.

    One reason that Tea Party extreme conservatism is fading back into the ether from which it was created by oligarchs looking for a comeback is that there’s been a great deal of academic research on motivated cognition and the whole belief structure is not based on reality but dreams of the perfect world for the entitled. They think wouldn’t it be great if the world favored we who so believe but it simply doesn’t. It favors realists. Especially empathetic collaborative realists.

    What’s real is progress. Investment. Continuous improvement based on evolving knowledge. Change. Strong government and capitalism based on competition not entitlement. Education.

  34. Hi Mike Kendall – thanks for your thoughts. To your last sentence, “yes”, I would agree.

    To be accurate, I did not call Professor Kennedy a knee-jerk liberal. I said she is a hyper-partisan blogger. Maybe those are the same thing. ? But, Yes, also…I suppose my reaction was knee-jerk as well. That tends to happen when I see partisanship attempting to drape itself in objectivity.

    But don’t kid yourself. The post is not analytical journalism in the least. She says “….toxic mix of civic ignorance and apathy, political money, gerrymandering and raw racism has brought us to a place where a fascist buffoon is likely to be the Presidential candidate of a major party, and the legislative leadership of that party insists on elevating its partisan interests above the both the law and the national good?” (and who is defining “national good”? conservatives would say our nation will be best served to wait.)

    In case no one has noticed, the GOP is not supporting Trump, nor is the overwhelming vast majority of conservative-leaning media..(nor do I). But, we certainly wouldn’t know that from her “analysis”. Interestingly, there is a good piece of analysis about the Trump phenomenon from none other than the NY Times: http://www.nytimes.com/2016/02/28/opinion/sunday/from-obama-to-trump.html

    Bottom line – and back to my original point – we need to stop stirring up division while pretending to abhor the same.

  35. Isn’t that funny! I thought the fascist baffoon Sheila was talking about was Hillary.

  36. I watched President Obama’s speech nominating Judge Merrick Garland to SCOTUS; before he reached the end of the long list of qualifications and credentials I realized Judge Garland is vastly OVER QUALIFIED to serve in Congress. This could be unnerving to those currently in the Senate due to the fact that this man is already well aware of their failings; increasing his judicial powers could be threatening to Mitch McConnell and his cronies. Just sayin’

  37. Jed and Ken, what good is conservatism? What progress has it ever led to? What has it accomplished? Please be specific.

    I can think of no reason to support it.

  38. I would argue that the period in American History from Jackson to Buchanan was as full of hypocrisy, lying, and careerism as today is. At that rate we can expect another ten years of these failures, assuming as I do that all this started with Clinton.

  39. Ron, I’m not sure that Bill Clinton invented lying.

    He did tell one whopper that had much more impact on his life than ours. In fact I don’t remember any impact on ours. Especially compared to Nixon and Bush’s whoppers.

  40. Well, if their position is that the President should be precluded from nominating a replacement Justice because the impact of the replacement might reverberate for years to come, then maybe all of the Congress should just go on sabbatical until the next election, because laws they pass might also reverberate for years.

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