Why Alexander Hamilton Would Hate the GOP Refusal to Consider a Scalia Successor; by Violating the Separation of Powers, Senate Republicans Are Threatening Democracy

By Eichenwald, Kurt | Newsweek, March 4, 2016 | Go to article overview

Why Alexander Hamilton Would Hate the GOP Refusal to Consider a Scalia Successor; by Violating the Separation of Powers, Senate Republicans Are Threatening Democracy


Eichenwald, Kurt, Newsweek


Byline: Kurt Eichenwald

Americans no longer deserve America. The Founding Fathers' experiment in democracy, forged in blood and scholarship, has failed.

There is no other way to interpret the obscene debate that has enveloped the country since the death of Supreme Court Justice Antonin Scalia. Almost before Scalia's body went cold, prominent Republicans rushed to proclaim they would never vote to confirm any nominee submitted by President Barack Obama to fill the vacancy. Their declaration stemmed from a bizarre, anti-constitutional argument that a president should be allowed to have any Supreme Court nomination confirmed only during 75 percent of the executive term of office.

Make no mistake: That is exactly what the Republicans are saying with their "a president shouldn't have the power to select a justice in an election year." (Or is it just a Democratic president?) But why stop there? There are two elections in every presidential term, including the midterms, when control of the Senate is up for grabs. Shouldn't the public--using the Republicans' absurd "electoral year" argument--have a voice in deciding who can and cannot be confirmed by letting elections happen first?

For an example of how respect for the Constitution has decayed, look at the selection of Scalia, whom President Ronald Reagan nominated in 1986. His hearings began in August, about three months before the midterm elections. At the time, Republicans controlled the Senate, but polls showed the Democrats were almost certainly going to gain the majority in November. The Democrats had the power to filibuster and delay. Instead, Scalia was confirmed on September 17 by a vote of 98-0, just 49 days before the Democrats won control of the Senate by a wide margin. Forty days before the election, the Senate also approved Reagan's selection of William Rehnquist, who already sat on the high court, as chief justice.

After the 1986 midterms, the Senate's Democratic majority could have refused to confirm any more nominees in election years. But they didn't. Instead, they unanimously confirmed Anthony Kennedy in 1988, another election year. So two of Reagan's selections for new justices--and his choice of chief justice--were confirmed not only during the run-up to a midterm election but also in a presidential election year.

It's not that Democrats are inherently moral. Reagan's first nominee for that Supreme Court opening ultimately awarded to Kennedy was Robert Bork, a brilliant man supremely qualified for the job. Democrats ripped him to shreds over ideological differences in ugly Senate confirmation hearings that brought disgrace to the party and sped the politicization of the court.

But Republicans have taken partisanship and perverted it into a pure power grab that has crippled the judiciary. Since gaining control of the Senate in 2015, GOP senators have largely stopped filling vacancies on the 12 federal appeals courts, which is also virtually without precedent. When faced with a Senate led by Democrats, Republican presidents since Reagan have been able to appoint between 10 and 18 appeals court justices during their final two years in office. During the years Obama has had a GOP majority in the Senate, only one has been confirmed; about a dozen seats are empty because the Republicans have refused to allow hearings on nominations. Now Obama will likely end the last two years of his presidency with the fewest appointments to the appeals bench since President Grover Cleveland left office in 1897--and that's only because there were no vacancies at the time.

While Republicans wave the Constitution, many of them seem to have no idea what the founders intended by giving the Senate the power to confirm nominations. Intent on forming a government unlike any other in history, these men spent enormous amounts of time discussing the issue of judicial appointments: Should they be selected by the president alone? …

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