On Appointments

I’ve been gathering some background information on our Constitution as regards the Supreme Court. This was considered so very important by the drafters of the Constitution that it is in the Second Article. It says of the President: “ … he shall nominate, and by and with the Advice and Consent of the Senate … shall appoint Judges of the Supreme Court, and all other officers of the United States, whose Appointments are not herein otherwise provided for, and which shall also be established by law … “

Since Justice Antonin Scalia died unexpectedly last week, the Republican Presidential hopefuls have stated they want the Senate to deliberately not even consider anyone President Obama might nominate. They are urging the Senate to shirk their responsibility. It’s one thing for a nominee to be unqualified, and it’s a totally different thing to refuse to even look at his/her record. In this, the hopefuls are echoing Mitch McConnell, who within an hour of Justice Scalia’s death, said that the Senate would not consider any nominees. Talk about unseemly haste, as well as being pig-headedly obstructionist.

Some of those Republican hopefuls have claimed there’s an 80-year precedent for not consenting to a nominee during an election year. That is obviously false. President Reagan, a Republican, nominated Justice Kennedy in November of 1987, while the election campaigning was in full swing. The Democratic controlled Senate allowed him to be confirmed in February of 1988. Justice Clarence Thomas was confirmed in the fall of 1991, also during an election season. Maybe they’ve forgotten how to add and subtract, but to me that turns into 28 and 25 years, a far cry from 80.

Rejection of nominees are relatively rare, with only 12 being turned down by the Senate. There have been some withdrawn, when it was seen they didn’t have much chance of consent. The approval process was usually about one month before 1981, according to one site I visited. After President Reagan, that site says the process has taken about 67 days (as an average). The process has become more about the political leanings of the nominee than about their judicial thinking processes or their qualifications. (Nowhere does the Constitution say the nominee even has to be a lawyer.)

The current process includes many hours of questioning of the nominee by the Senate Judiciary Committee. Currently, the number of hours of questioning goes into double digits. Before 1925, the nominees were not questioned at all. It’s only been since 1955 that they all are.

I feel that for the Senate to go along with not even considering any nominee simply because it’s President Obama making the nomination, and refusing to look at that person’s qualifications, is vastly unfair to said nominee. Refusing to even look at any nominee would be extremely short-sighted, childish, and even stupid. It is also extremely unfair to the American people, leaving us all with a possibly ineffectual Supreme Court, since it leaves us with only eight Justices. Cases could be deadlocked in ties. When the Supreme Court is deadlocked, the lower courts’ rulings stand. But it’s still a waste of time and money, and the lower courts’ rulings don’t have the same clout as the Supreme Court’s rulings would.

To me, this is proof that the Republican Presidential contenders really do not respect our Constitution. The act of obstruction is the same act taken by children who refuse to play when the rules aren’t to their liking. The President is in office until the next electee is sworn into office. He was elected to serve for eight years, not seven.

There’s also a little niggle of them not being guaranteed that any Republican will be elected in November. It’s quite possible that one of the Democratic hopefuls would then be making the nomination if this process is still being obstructed. And would they then refuse to consider any nominees for another four years? They seem to think their party is more important than the United States as a whole.

Another niggle is that appointees don’t always offer up the expected opinions. Other presidents have been surprised, and not happily so, in the past. The republicans could be refusing to consider a Justice who would agree with them, and wouldn’t that just be ironic?