Dead Stop

Well, they talked about it, and they finally made it official:

Senate Republican leaders said Tuesday that there would be no confirmation hearings, no vote, not even a courtesy meeting with President Obama’s nominee to replace Justice Antonin Scalia, all but slamming shut any prospects for an election-year Supreme Court confirmation.

Together with a written vow from Republicans on the Senate Judiciary Committee that they would not hold any confirmation hearings, the pledge was the clearest statement yet from the Senate’s majority party that it would do everything it can to prevent Mr. Obama from shifting the ideological balance of the nation’s high court. Senator Mitch McConnell of Kentucky, the majority leader, urged Mr. Obama to reconsider even submitting a name.

“This nomination will be determined by whoever wins the presidency in the polls,” Mr. McConnell said. “I agree with the Judiciary Committee’s recommendation that we not have hearings. In short, there will not be action taken.”

That’s that – he made every Republican senator sign the pledge, so no one would break ranks. Two of his senators did break ranks late in the day – they’re up for reelection in states that Obama carried twice and worried about appearing too hard-assed about this. McConnell might come down hard on them – preferring to lose those two seats and maybe the Senate, rather than losing conservative control of the Supreme Court – or he might let that ride. He has enough pledged names already, but this is something new:

The forceful moves that followed even before Mr. Obama put forward a choice for the court has the Senate into unprecedented territory: Senators meet with high-court nominees as matters of courtesy and cordiality, but even that tradition has been rejected. …

Battles over the Supreme Court have grown increasingly contentious since the 1960s, when Republicans and conservative Democrats blocked President Lyndon B. Johnson’s nomination of Justice Abe Fortas to become chief justice, congressional historians said. But the refusal to grant a nominee any consideration was a startling turn.

“What is remarkable is the opposition is not to a particular candidate or even to the notion Obama will only nominate someone too extreme, but that he should not have any right to have a nomination considered,” said Julian E. Zelizer, a professor of history and public affairs at Princeton University.

“This is not even like the drawn-out confirmation process that President Wilson faced with Louis Brandeis,” Professor Zelizer said. “This is the argument that nothing should even be considered.”

That’s what is new, as noted on the other end of Pennsylvania Avenue:

The White House on Tuesday warned that the Republicans were risking an extraordinary escalation of partisan rancor in a process that should be free of it.

“This would be a historic and unprecedented acceleration of politicizing a branch of government that’s supposed to be insulated from politics,” said Josh Earnest, the White House press secretary, who said on Twitter that every Supreme Court nominee since 1875 had received a hearing or a vote.

Yeah, well, so what? They had their ammunition. They had Joe Biden:

Republicans seemed emboldened in large measure because of Mr. Biden’s 1992 floor speech, which has become a staple of their talking points. Mr. Biden, now the vice president, said his words were taken out of context, and he issued a statement boasting of his record in confirming federal judges while the chairman of the Senate Judiciary Committee. Aides to Mr. Biden also insisted on Tuesday that he had been warning against filling a vacancy created by a voluntary resignation of a justice, not by an unexpected death. In any event, no such vacancy occurred.

Yeah, there was no vacancy, and Biden was only saying Bush shouldn’t nominate an asshole, hypothetically speaking, but McConnell and other Republican leaders laughed. Obama is the one being an asshole. He’s picking a fight by nominating anyone at all – just to rile up the Democrats. He should be ashamed of himself. And so on and so forth. And the White House jumped back in:

“There is this emerging trend in Congress that has worsened in just the last few weeks, where Congress isn’t simply in a position of just saying ‘no,’ Congress is actually refusing to engage,” said Mr. Earnest, the press secretary. He cited Republicans’ refusal on Tuesday to consider the president’s plan for shutting the United States military prison at Guantánamo Bay, their inaction on a new authorization for military force against the Islamic State, and their unwillingness to convene the customary annual hearing on the president’s budget plan.

“They’re doing just about everything, except for fulfilling their basic constitutional responsibilities,” Mr. Earnest said.

So, just who should be ashamed of themselves? Fingers were pointed, but at Mother Jones, Kevin Drum wonders what the hell the Republicans were thinking:

Why refuse to even hold hearings? That just makes Republicans look sullen and obstructionist. Why not hold hearings normally, drag them out a little bit, and then vote down whoever Obama nominates? The result is the same, but Republicans look more like senators and less like small children throwing a temper tantrum.

I suppose the answer is that this is a good way of firing up their base, and they think that’s more important than appealing to the center. Fair enough. But that raises another question: What’s the best way to fire up the Republican base? I’m not trying to troll anyone here, but it seems like the answer is to hold hearings. That would keep the whole Supreme Court issue front and center for months on end. The base would be faced almost daily with the prospect of what a liberal justice would do; talk radio would go nuts; and there would be endless chances to find specific problems with the nominee – many of which would coincidentally require the production of reams of files and records to trawl through.

Democrats, conversely, would have less to get fired up about. Sure, they’d be unhappy, but they wouldn’t be able to carp endlessly about Republican obstruction. Their guy is getting a hearing, after all.

That makes sense. It’s a win-win. He doesn’t get it, but Josh Marshall does:

There’s nothing really different today than what Mitch McConnell committed Republicans to only hours after Justice Scalia’s death. But we now have a formal embrace of the ‘Three Nos’: No meetings, no hearings, no vote. Indeed, from what I’m hearing McConnell won’t even commit to an up or down vote on a nominee from the next President. So he may want to keep this going into a next Democratic term if there is one.

That’s new too, but this is what it is:

The key was not to start any process at all. Having a meeting, holding a hearing – those just focus the discussion on the nominees qualifications, which is bad for Republicans since Obama will almost certainly nominate someone who is eminently qualified, generally moderate in judicial outlook and likely someone who has already been approved for an appointment by a unanimous or near unanimous vote.

What Kevin Drum doesn’t realize is that confirmation hearings would be more dangerous than looking like small children throwing a temper tantrum – they’d look like fools, attacking someone perfectly fine. Still, Marshall does see danger here:

In all of this I sense there is a bit of a protest-too-much quality to the Republican stance. No, I don’t think Obama is going to roll these guys. But they clearly want to affirm this commitment so overwhelmingly and emphatically that the debate essentially ends, that it is just understood as a given. And the debate ends. But I’m not sure that will happen. Not every Republican Senator is committing to this line. And there’s reason to think that this could be damaging, if Democrats manage the debate well, to swing state Republican Senators.

That is why two have defected already, but Ian Millhiser at Think Progress confirms that Mitch McConnell did say that if a Democrat wins the White House, his Republican Senate simply will not move on any court confirmation, for four years, or maybe eight years, which Millhiser finds absurd:

There are many obvious reasons why Supreme Court seats should not be left open until Mitch McConnell personally gives his stamp of approval to whoever the American people elect as president. Even setting aside the ideological consequences of a “Mitch decides” standard, Justice Scalia himself warned that an empty seat “impairs the functioning of the Court” when the justices are trying to decide a case…

It’s worth noting, moreover, that three current justices, Justices Anthony Kennedy, Ruth Bader Ginsburg and Stephen Breyer, are all quite elderly. More vacancies – possibly as many as three more – could open up before Mitch McConnell decides that he likes the person sitting in the White House. If too many vacancies open up, that could potentially shut down the Supreme Court entirely. Under federal law, “the Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum,” so if four seats become vacant there will no longer be enough justices to form the quorum necessary to decide cases.

Admittedly, there are strong arguments that a federal law that effectively deactivated the Supreme Court (by requiring six justices for the Court to do business if only five actually exist) violates the Constitution. The Constitution provides that “the judicial power of the United States, shall be vested in one Supreme Court,” which suggests that the existence of some body with the power to perform the high Court’s functions is mandatory.

Should the Court’s membership be reduced to five, however, that could trigger a novel kind of constitutional paradox. Can God create a rock so heavy that even He cannot lift it? Does a Supreme Court with only 5 members have the power to declare the 6 justice quorum requirement unconstitutional?

It could come to that, and Jonathan Chait explains why:

The Constitution’s instructions that the Senate “advise and consent” on nominees to the courts and the executive branch has meant different things at different times. Sometimes, the Senate has given the president wide latitude to appoint justices of a similar bent. As McConnell himself wrote in a 1970 law-review article, “The President is presumably elected by the people to carry out a program and altering the ideological directions of the Supreme Court would seem to be a perfectly legitimate part of a presidential platform.” Other times, the Senate has withheld its consent from nominees deemed too extreme – though no party had yet proposed or adopted blanket opposition to any nominee from the opposing party, until now.

But it had to happen sooner or later:

While the Republican blockade may lack any precedent, it, too, is probably well within the law. This is the problem. Americans like to imagine our form of government as a perfectly designed system of checks and balances that prevents any one branch from abusing its power. In fact, as the late Spanish political scientist Juan Linz pointed out a quarter-century ago, presidential systems nearly always collapse. Linz attributed America’s unusual ability to make its presidential system operate without violent coups to its weak, ideologically overlapping parties. But that signal observation, which was true when Linz made it, has grown less true over time, as the Democrats have moved somewhat leftward and the Republican Party has lurched far to the right.

It turns out that what has held together American government is less the elaborate rules hammered out by the guys in the wigs in 1789 than a series of social norms that have begun to disintegrate. Senate filibusters were supposed to be rare, until they became routine. They weren’t supposed to be applied to judicial nominations, and then they were. The Senate majority would never dream of changing the rules to limit the filibuster; the minority party would never plan to withhold all support from the president even before he took office; it would never threaten to default on the debt to extort concessions from the president. And then all of this happened.

Though Obama’s public (and perhaps private) position is that he will persuade the Senate to confirm someone with an “outstanding legal mind,” this is highly unlikely.

That would lead to this:

If Hillary Clinton wins in November and Republicans retain the Senate, they may feel shamed by their promises to let the voters decide the Court’s next nominee and give her a justice. Or maybe not – maybe some dastardly Clinton campaign tactic, or reports of voter fraud on Fox News, will make them rescind their promise. The Supreme Court could remain deadlocked at 4-4 for the remainder of her term, causing federal rulings to pile up and further fracturing the country into liberal and conservative zones with dramatically different constitutional interpretations. On some of the most contentious issues, there would be, effectively, no Supreme Court at all.

If Republicans win the White House and retain the Senate, Democrats would regard Scalia’s vacated seat as rightfully theirs and oppose any nomination. This will cause Republicans to abolish the filibuster altogether; then they will fill the seat, solidifying their control over all three branches of government.

That changes everything:

A world in which Supreme Court justices are appointed only when one party has both the White House and the needed votes in Congress would look very different from anything in modern history. Vacancies would be commonplace and potentially last for years. When a party does break the stalemate, it might have the chance to fill two, three, four seats at once. The Court’s standing as a prize to be won in the polls would further batter its sagging reputation as the final word on American law. How could the Court’s nonpolitical image survive when its orientation swings back and forth so quickly? And given that the Court can affect the outcome of elections directly (like it did in Bush v. Gore) or indirectly (by ruling on the legality of partisan redistricting schemes, laws designed to inhibit voting by marginal constituencies, campaign-finance regulations, or labor’s ability to organize politically), with every election, the stakes will rise and rise. …

In the new world, where seating a justice is exactly like passing a law, whether the Court can continue to carry out this function is a question nobody can answer with any confidence.

Steve M at No More Mister Nice Blog adds this:

I think a Democratic Senate in 2017 would ultimately approve a Republican president’s Court nominee, although a pick or two might be rejected first. Or maybe the Democrats would just dig in their heels the way McConnell is threatening to. On the other hand, I strongly suspect that a Republican Senate won’t approve a Democratic president’s nominees no matter who they are, and no matter how long the seat or seats have remained vacant, a stalemate that could well last for two four-year terms. So we really might not have a Supreme Court by 2024.

At this point, I don’t put anything past Republicans.

That’s because all they have is the Supreme Court, as Josh Marshall explains here:

No alternative or dark explanations are required when it comes to Republican desires to dictate the replacement for the late Justice Antonin Scalia. Control of the federal judiciary has been a transcendent goal of the conservative movement for two generations. And in the face of political and demographic change, the Republican Party has become increasingly dependent on the Supreme Court to entrench its political power through attacks on voting rights, unions, one person one vote and decisions like Citizens United, not to mention Bush v. Gore. So the stakes, on the merits, are vast.

But Marshall sees more going on:

The manner of the refusal to even entertain the nomination of a President with a year left in office is simply a culmination of Republican efforts not simply to block Obama’s policies but to delegitimize, degrade and denigrate his presidency and the man himself.

There are certain stand-out moments like when South Carolina Congressman Joe Wilson (R) screamed out “You lie!” when President Obama was presenting his health care plan to Congress in September 2009. Or more recently, there was the unprecedented instance of the Speaker of the House negotiating with a foreign head of state, behind the back of the President, to come to the House to advocate against the President’s signature foreign policy initiative.

But the deeper pattern is one of persistent and pervasive denigration and – I hate jargon words like ‘othering’ but, well … othering. We talk about the so-called “birther” controversy that at least among morons and racists dogged President Obama for years. But birtherism is better thought of as the clownish outlier of a more pervasive phenomenon. Even today you can routinely hear Republican presidential candidates telling crowds that President Obama doesn’t believe in ‘American exceptionalism’, is trying to damage America, cut it down to size in favor of other countries, wants to make America more like other countries, is driven by hatred of America…  President Obama is in so many ways, an outsider, an enemy who wants to hurt us, Americans.

This latest rebuke over the Court feels like another example of how Republicans have not simply opposed President Obama’s policies – which is their right and if anything a sign of party discipline – but refuse to accord him the personal respect or respect for the office of President which has been accorded to every other chief executive.

Marshall thinks of Bill Clinton:

It is odd to think now, almost a generation after his presidency, after years in which Clinton was embraced as a beloved elder statesman and a sort of wizard of the political arts. But Republican hatred of President Clinton was so unbounded that in some respects it became their own undoing. Everyone remembers today that Clinton had approval numbers in the 60s for much of his second term in office; fewer remember that they only shot to those levels after the outbreak of the Lewinsky scandal and its peak moments.

His public approval was not simply because of the merits of his governance or the buoyant late 1990s economy. It was a public rebuke to Republican extremists who were intent on driving him from office over actions that most of the public found, at a minimum, embarrassing and un-presidential.

And this may be a racial thing:

It’s worth recalling this often nonsensical old line that Bill Clinton was the ‘first black president.’ I’ve often heard this line used by TV pundits as though there’s some rivalry between Clinton and Obama over who is the ‘first black president’ or that anyone ever thought that Bill Clinton was in any sense… well, actually black. The origin of the phrase has nothing to do with Clinton having an affinity for or rapport with black people or having a black soul, whatever the hell that might mean. The original meaning was altogether more bleak and brutal.

It starts with a comment Toni Morrison wrote in The New Yorker in October 1998, as the Lewinsky carnival was trundling toward its Lord of the Flies-like conclusion. Morrison’s point was that Clinton’s treatment looked something like what had for generations been a defining experience of African-Americans, particularly African-American men – a kind of hunting, absent any protection, with no line of dignity or threshold of humiliation that can’t be run over roughshod, even to the point of the violation or desecration of the frail dignity of the body.

Marshall then quotes Morrison at length, but it comes down to this:

Clinton has spent the better part of a generation since 1998 as the toast of the world, the Davos set and the popular culture, a self-defined international celebrity powerhouse, a millionaire so many times over. But it was very real at the time. Remember that Jesse Helms, the Republican senator from North Carolina, a degenerate racist of the old school, once joked/not-joked that President Clinton shouldn’t come to his state or he might be shot. Clinton was the ‘first black president’ because he was treated with an acidic disrespect and humiliation that many African-Americans believed a black president would endure. …

Barack Obama is everything that Bill Clinton is not – in good ways and bad. In key respects, the two men could not be more different. Obama is squeaky clean. If there is an impulsive side to his personality, he has driven it deep inside the recesses of his psyche. And yet the vilification, delegitimization, denigration of the two men has a distinct similarity which is hard to ignore if you followed each presidency closely as they happened. If you were watching the impeachment spectacle, “You Lie!” was altogether familiar. …

The social, cultural, political antagonism of the Clinton years is fundamentally similar to that of the Obama years. The players are different, but the factions they bring into conflict are fundamentally the same, only now with the conflict and the alignment in a more purified, clarified form.

That’s because Obama is actually black. No, really, he is. This had to get much worse, or Chait is right – this had to get worse because of the inherently unstable nature of our system, where vague “norms” held things together, not the structure of government itself. Norms change. It all falls apart. The Constitution is of no help at all. Scalia died. The whole thing comes to a dead stop. Now what?