Lamar W. Hankins :
Republicans’ rejection of the Constitution is a disservice to America

They have been distorting the history of the Supreme Court nomination process to justify
their political desires.

President Obama announces the nomination of Merrick Garland to the U.S. Supreme Court. Public Domain photo.

By Lamar W. Hankins | The Rag Blog | March 27, 2016

The Supreme Court nomination process is being fought out between Republicans and Democrats, with no thought given to its effect on the biggest plurality in the country — independents.

Neither a Republican nor a Democrat, I am an independent.  For the last 24 years, I have voted for candidates all over the ballot.  I have voted in both Republican and Democratic Party primaries.  I find the range of views within both of the major parties incoherently disparate.  But what concerns me today is that the intransigence of one of those parties’ elected officials is denying me and all other independents (as well as most Americans) a properly functioning federal government.

In 2014, Gallup reported that independents make up 43% of the electorate, while Democrats make up 30% and Republicans 25%.  When a large plurality of the voting public is denied a working government, it means that many party functionaries and elected officials are failing to fulfill their oaths to follow the Constitution.  When most of those officials are from one party, in this case the Republican Party, it means that 73% of voters are being denied a functioning government.

A kind of constitutional nullification is being played out over President Obama’s appointment.

The current and most blatant example of this kind of constitutional nullification is being played out over President Obama’s appointment of Judge Merrick Garland to the Supreme Court to fill the vacancy created by the sudden death a few weeks ago of Justice Antonin Scalia.

All of the Republican senate leadership and all Republican members of the Senate Judiciary Committee are refusing to vet the nominee and schedule hearings on his nomination.  Nearly all of those same elected officials are even refusing to meet with Judge Garland.  Aside from the obvious disrespect directed toward the nominee and the president who nominated him, there is no way to justify the refusal of Senate Republicans to carry out their constitutional responsibility to fulfill the “advice and consent” function assigned to them by Article II, Section 2, of the Constitution.

Many Republicans are relying on the 1987 nomination of Judge Robert Bork to justify denying Judge Garland a hearing and vote.  For example, Jonah Goldberg wrote in the Los Angeles Times:

Democrats have been blowing up the appointment process piecemeal since they turned Judge Robert Bork’s last name into a verb back in 1987.

Anyone familiar with the Bork process knows that Bork was not denied a hearing and vote.

But anyone familiar with the Bork process knows that Bork was not denied a hearing and vote.  He had a week-long hearing before the Judiciary Committee, after which an overwhelming majority of the committee voted not to approve his nomination.  Nonetheless, the committee referred the nomination to the full Senate for a vote.  Bork’s nomination was defeated by a 58 to 42 vote in the Senate.  Bork’s problem was that his legal views were judged to be outside the judicial mainstream and out of touch with modern America, as explained by Sen. Ted Kennedy (D-Mass.) in comments made on the Senate floor:

Robert Bork’s America is a land in which women would be forced into back alley abortions, blacks would sit at segregated lunch counters, school children could not be taught about evolution, writers and artists could be censored at the whim of government.

This may be the America that Republicans want to return to.  Perhaps it is what Donald Trump means by “Make America great again.”

The argument that President Obama should not be allowed to carry out his constitutional duty to make a nomination because he has less than one year left in his term is completely outside the legal and constitutional mainstream.  Likewise, the notion that senators have the prerogative to ignore their constitutional duty to carry out their “advice and consent” function has no constitutional support.

Claiming some Senate tradition is nonsense, even if tradition could supplant the Constitution.

Any argument claiming some Senate tradition is nonsense, even if tradition could supplant the Constitution, which it cannot for anyone serious about fulfilling the plain language of that founding document.  Even the late Justice Scalia would not come to a different conclusion.

The failure of Republican senators to fulfill this duty borders on sedition and constitutional nullification.  The suggestion by Texas Sen. John Cornyn that Judge Garland will look something like a “political piñata” is obscene and echoes Donald Trump’s outrageous desire to beat up those who disagree with him.  We should be able to disagree without turning to violent threats, actions, or imagery.

Republicans have been distorting the history of the Supreme Court nomination process to justify their political desires.  As Michael Gerhardt, a professor of Constitutional Law at the University of North Carolina at Chapel Hill, Scholar-in-Residence at the National Constitution Center, and Visiting Scholar at the University of Pennsylvania Law School, writing on ScotusBlog, has pointed out:

. . . (N)ot a single president has ever refused to make a nomination to fill a Supreme Court vacancy, regardless of its timing. No president has ever abdicated this authority, not even when they were lame ducks. In fact, six lame-duck presidents have made six Supreme Court appointments. Perhaps the most famous of these was John Adams, who, despite having been trounced in the 1800 presidential election by his rival (and vice president) Thomas Jefferson, nominated John Marshall as Chief Justice just a few weeks before Jefferson’s presidential inauguration. Though he despised Marshall, Jefferson never questioned Adams’s authority to make the appointment.

. . . (O)f our forty-four presidents, forty have had the opportunity to make Supreme Court appointments, and thirteen of those, nearly a third, have appointed nineteen Justices during presidential election years. (Combined with lame-duck presidents who made Supreme Court appointments, the total comes to nineteen presidents, or nearly half of all presidents, who have made Supreme Court appointments during or right after presidential elections.) The first president to appoint Supreme Court Justices in presidential election years was George Washington; he made two in 1796, a time that many scholars consider important because our leaders were all framers of or intimately familiar with the drafting and ratification of the United States Constitution. Five presidents in the twentieth century — William Howard Taft, Woodrow Wilson, Herbert Hoover, Franklin Roosevelt, and Dwight Eisenhower — made successful Supreme Court nominations in presidential election years. Indeed, Wilson made two Supreme Court appointments in 1916.

Some Republican senators have made the argument that it has been 80 years since a nomination was made and confirmed in a presidential election year.  This is a virtual non sequitur.  It proves nothing and is devoid of any constitutional analysis.

In 1957, William Brennan was given a hearing and confirmed by the Senate.

If the appeal is to tradition, one could look at the Senate confirmation, during an election year, of Frank Murphy in 1940 and Anthony Kennedy in 1988, though Kennedy was nominated the previous November.  However, Murphy was nominated on January 4 and took the oath of office on January 18, 1940.  President Eisenhower named William Brennan as a recess appointment and nominee to the Court in 1956, just before the presidential election. In 1957, Brennan was given a hearing and confirmed by the Senate, with only the infamous Sen. Joseph McCarthy voting against him out of anti-Catholic bigotry.

When President Lyndon Johnson nominated Justice Abe Fortas to replace Earl Warren as Chief Justice and Homer Thornberry to take Fortas’s seat in the election year 1968, both nominations were unsuccessful, but not until the Judiciary Committee had conducted 22 hearings on the nominations.  Fortas withdrew his name because of ethical problems that had come to light during the process.  The Senate never voted on Thornberry’s nomination.  When Fortas withdrew his nomination to be Chief Justice, he retained his seat on the court.  As a result, there was no seat on the Supreme court for Thornberry to occupy; thus, his nomination became moot.

Republicans considered President Obama a lame duck from the moment he was first elected.

Another argument proffered by Republicans is that President Obama is a lame duck and should not nominate anyone to the court as a result.  The term “lame duck” has previously been applied to the period between an election and the end of a term in office.  The Republicans want the public to believe that the entire last year of a president’s term is the lame duck period, a re-definition without historical support.  Nothing in the Constitution suggests that a president has appointment powers only during the first 75% of the presidential term.  In truth, Republicans considered President Obama a lame duck from the moment he was first elected in 2008.  Surely, they thought, given another chance, the voters would correct their apparent mistake of electing the first African-American president.

According to University of Chicago Law School professor Geoffrey Stone, as quoted by Michael Gerhardt, “in the last 60 years 19 of the 20 most moderate Supreme Court nominees have been confirmed by the Senate.”  Moreover, “even when the Senate was controlled by the opposing party, in the last 60 years every one of the eight nominees who was perceived to be both qualified and reasonably moderate was easily confirmed.”  Virtually everyone concedes that Judge Garland is a moderate, as judged by his nearly 20 years on the federal bench and as seen in supportive comments by a diverse group of Republicans from Kenneth Starr to Orin Hatch to Michael Chertoff.

Even Chief Justice Roberts singled out Judge Garland as a model of judicial propriety.

Even Chief Justice Roberts, during his 2005 confirmation hearings, singled out Judge Garland as a model of judicial propriety, saying, “Anytime Judge Garland disagrees, you know you’re in a difficult area.”

Senate Republicans have been trying since Barack Obama’s election to thwart him, to diminish his powers, and to neuter him politically.  (It is hard for me to believe that race doesn’t have something to do with this.)  Now, the Republicans’ leading presidential candidate is the person who, more than anyone else in public life, spent the last seven years trying to convince the public and the courts that President Obama was not born in the United States, though no rational person can deny the authenticity of his Hawaii birth certificate.

When irrationality and racial animus combine, it creates a nasty stew whose recipe was cooked up in the slavery era, with extra ingredients added in the Jim Crow and Ku Klux Klan eras of American history.  The Republicans should be called out for their racism, sedition, and nullification propensities.  They use these characteristics to appeal to the unhinged, racist, and xenophobic elements of our culture, thereby weakening the ties that bind us all together into what could be a great nation, particularly if we could acknowledge the fullness of our history and not try to distort it or sanitize it.  But that may be asking too much of today’s Republicans and maybe today’s Democrats.

I am a member of a group whose interests are not considered by the two-party duopoly.

I am a member of a group whose interests are not considered by the two-party duopoly that has controlled our politics for the last 125 years.  Along with nearly two-thirds of independents in a recent Washington Post poll, I want hearings to be held, a step on a path to follow the Constitution, that will allow the “advice and consent” role of the Senate to be implemented.

Even Supreme Court Chief Justice John Roberts remarked a few weeks ago, “Look at my more recent colleagues, all extremely well qualified for the court, and the votes were, I think, strictly on party lines for the last three of them, or close to it, and that doesn’t make any sense. That suggests to me that the process is being used for something other than ensuring the qualifications of the nominees.”

The Chief Justice continued, “When you have a sharply political, divisive hearing process, it increases the danger that whoever comes out of it will be viewed in those terms.  If the Democrats and Republicans have been fighting so fiercely about whether you’re going to be confirmed, it’s natural for some member of the public to think, well, you must be identified in a particular way as a result of that process.”

I have no interest in promoting either major political party’s interests.  I want the interests of all Americans to be protected by simple adherence to the Constitution, without the spin of partisans for whom their political parties are more important than the public good and fidelity to our founding document.

The actual history of the United States does not support shutting down the Supreme Court nomination process during election years any more than does the Constitution.  It is time for the few honest politicians we have to step forward and call out the mountebanks and charlatans who fill the halls of Congress.  Otherwise, we will need more than a political revolution to make our country right.

Read more articles by Lamar W. Hankins on The Rag Blog.

[Rag Blog columnist Lamar W. Hankins, a former San Marcos, Texas, City Attorney, also blogs at Texas Freethought Journal. This article © Texas Freethought Journal, Lamar W. Hankins.]