Tea Party Patriots Weekly Report from Washington for 2/14/16
The House and Senate will both be in recess next week. The House will return on Tuesday, February 23, and the Senate will return on Monday, February 22.
This week we’re going to go straight to the issue that’s going to have smart heads exploding and tongues wagging for the next several weeks, if not for the duration of the 114th Congress – what to do about an untimely vacancy on the Supreme Court.
Supreme Court Justice Antonin Scalia died of a heart attack early Saturday morning. He was a giant of the legal profession – the longest serving member of the current Supreme Court, a champion of the legal theory known as “Originalism” (the theory that seeks to apply to modern-day legal questions the understanding of those who drafted and ratified the Constitution) and “textualism” (the legal theory that says the written words in a law matter more than what may or may not have been said by legislators during its consideration). That made him, in the words of The New York Times, “uncomfortable” with some of the Supreme Court’s most important precedents. “We have now determined,” he said, by way of example, in public remarks in 2004, “that liberties exist under the federal Constitution – the right to abortion, the right to homosexual sodomy – which were so little rooted in the traditions of the American people that they were criminal for 200 years.”
President Obama announced his intent to nominate and seek confirmation of a replacement. Senate Majority Leader Mitch McConnell announced his belief that the President should not make a nomination in a presidential election year, saying, “The American people should have a voice in the selection of the next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.” Senate Judiciary Committee Chairman Chuck Grassley has joined McConnell in declaring his belief that no nomination should be forthcoming.
Some have suggested that we pay particular attention to the wording of the McConnell statement – to wit, they note that he did not specifically say he would not move a nomination to the floor, or that he would defeat a nomination. He just said, “ … the vacancy should not be filled until we have a new President.” These same people suggest that it’s at least possible, if not likely (given his track record) that Sen. McConnell is making nice-sounding noises, but has not truly committed himself to opposing an Obama replacement pick, and that he has deliberately left himself wiggle room.
Time will tell. But if McConnell DOES cave, a nominee would still have to get by Judiciary Chairman Chuck Grassley, who has declared his preference for waiting until after the November elections. And if by some happenstance a nominee COULD get around Grassley’s opposition, Ted Cruz has vowed to filibuster any such nomination that made it to the floor.
There’s no such thing as a “sure thing” in politics, especially when we’re talking about Senate Republicans. But let me put it this way – if I were a betting man, I’d bet there’ll be no floor vote on an Obama replacement nominee until after the elections, no matter WHOM he nominates.
So, let me give you some facts to arm yourselves for what is sure to be a major topic of the political conversation in this country for the next several months, if not the rest of the year:
- First off, there’s nothing in the Constitution or the law that requires a full bench.
- For decades, the Senate has operated under what’s known as the “Thurmond Rule,” named after the late Strom Thurmond of South Carolina. Senate Judiciary Committee Ranking Member Pat Leahy of Vermont recognizes the Thurmond Rule as this: “At this point in a presidential election year, in accordance with the Thurmond Rule, only consensus nominees being taken up with the approval of the majority and minority leaders and the chairman and ranking members of the Judiciary Committee should be considered.”
- You have to go all the way back to FDR to find a President nominating and the Senate confirming a replacement to an election-year vacancy on the Supreme Court. That’s 80 years of precedent.
- If someone – say, John Dickerson of CBS News, as he did in the Saturday night debate – says, “Au, contraire! Justice Anthony Kennedy joined the court in early 1988. There’s an election year confirmation!” simply reply, “Well, yes. Kennedy was nominated on November 30, 1987, to fill a VACANCY that occurred in the summer of 1987. The only reason Kennedy was confirmed in early 1988 was because the Senate had rejected Robert Bork in the summer of 1987, and then President Reagan’s second nominee – Douglas Ginsburg – withdrew his nomination after acknowledging that he had smoked marijuana.”
- Near as I can tell, we have never before had an election where control of the White House, control of the U.S. Senate, AND control of the Supreme Court has all been at stake. The November elections will be, quite literally, the most important elections of our lifetimes.
Moreover, the situation in which we now find ourselves demonstrates just how important were the midterm elections of 2014. Imagine if Republicans had not won control of the Senate then, and Harry Reid were still the Majority Leader. Does anyone doubt that Reid would have invoked the nuclear option, stage two, to lower to 51 the number of votes needed to end a filibuster of a Supreme Court nominee? If Democrats still controlled the Senate, Barack Obama would be in a position to ram through the Senate the confirmation of a young liberal firebrand who could have changed the balance on the Court for a generation.
Elections, in other words, have consequences.
JENNY BETH MARTIN/TPP:
CRIMINAL JUSTICE REFORM: