The Supreme Court battle – a fight for survival

Lee A. Daniels1 5
Lee A. Daniels

(George Curry Media) – It was no surprise the Feb. 13 death of Supreme Court Justice Antonin Scalia immediately provoked a right-wing frenzy that’s raised the prospect of a constitutional crisis at the highest level of government.

At stake is whether the court will continue to be dominated by the 5-to-4 conservative bloc – of which Scalia was the harshest voice – or swing to a new 5-to-4 liberal majority.

The certainty that President Obama this week will nominate someone who is not a conservative to replace the arch-conservative Scalia has not only undermined the “liberal disaster” rulings widely expected in several significant cases before the court this term. It would also make unlikely a future Supreme Court approving more of the conservative movement’s legal agenda on such issues as abortion rights, affirmative action, voting rights and protections for workers.

That’s why it took only moments after Scalia’s death became known for Republican Party leaders and wannabe presidential candidates to show – again – they’re “conservative” only when it suits their purposes. When it doesn’t, they readily throw the Constitution on the closet shelf and support the most outrageous proposals, the most radical schemes.

So, hoping the November elections will produce a Republican president, conservatives from all corners quickly put on their “Party of No” robes and declared Obama should shirk his constitutional duty and not nominate anyone to fill the Supreme Court seat Scalia had occupied for nearly three decades. Mitch McConnell, R-Ky., the Senate majority leader, thundered that if Obama ignored the demand, he would refuse to allow a Senate vote on the nominee.

The conservatives’ ostensible argument was that, this being a presidential election and the last year of Obama’s tenure, he should leave bringing the court back to full strength to the next president.

“The American people should have a voice in the selection of their next Supreme Court Justice,” McConnell intoned – thereby ignoring both the Constitution’s directive and the fact that the president and the Senate represent “the people.” Fellow Kentuckian Rand Paul, fresh from his inept GOP presidential primary campaign, provided the week’s comic relief by declaring Obama should forego nominating a new justice because, given that the court considers issues of presidential power, the president has a “conflict of interest” in the matter.

In fact, for all the shock of Scalia’s sudden death, one might say Republicans have been “practicing” for this moment since the 2014 mid-term elections gave them control of the Senate – and its committee chairmanships. As The New York Times reported last week, in the intervening year the president has been able to fill only one vacancy on the country’s 12 regional federal courts of appeal. The reason: Republican senators have junked the tradition of approving ahead of time his nominees for judgeships in their states – thus preventing him from sending nominations to the Senate Judiciary Committee for consideration.

Such commentators as Paul Waldman wrote this showed the Republican political establishment’s become not just reactionary in its ideology but also amoral about time-honored traditions of American politics.

“Shut down the government? You bet!” Waldman wrote, describing the GOP’s Obama-era behavior. “Filibuster every bill [Democrats propose] Sure! … Bring America to the brink of defaulting on its debt? Why not! And every incentive Republican members of Congress have pushes them to be more uncompromising, more reckless, and more pure in their opposition to anything and everything any Democrat wants.”

(For a number of reasons, that scenario is far less likely to be put into play by Democrats against a Republican president.)

The GOP’s stalling gambit was so patently absurd a few senators last week began to twist this way and that under the weight of public outrage and a slew of critical newspaper editorials about exactly what their position on an Obama nomination was.

But there’s little doubt the GOP’s anti-anything-Obama-says-or-does posture will hold as his naming a nominee opens the next stage of what is the climactic Republican effort to damage the Obama presidency. A CBS News poll found that 82 percent of Republicans oppose Obama exercising his constitutional duty and presenting a nominee to the Senate (77 percent of Democrats support it).

That fact and the vicious civil war raging among the party’s various factions means that for the GOP presidential candidates, and every Republican officeholder up for re-election this November and for the GOP as a party, the Supreme Court battle is a fight for survival.

Time will tell whether some critical number of Republican senators commit to doing their duty as members of America’s national government. As Obama said last week: “The Constitution is pretty clear about what is supposed to happen now … Now, this will be a test. One more test, of whether or not norms, rules, basic fair play can function at all in Washington these days.”

Lee A. Daniels is a longtime journalist. His new collection of columns, Race Forward: Facing America’s Racial Divide in 2014, is available at


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