Dancing to the Supreme Court shuffle

reuters-do-not-reuse45-800x430Supreme Court Justice Antonin Scalia was a controversial figure during his term, so a fight like the one over his seat on the court seemed inevitable. His opinions and public comments, like those about a Texas affirmative action case, put Scalia in the thick of controversial issues. Yet the occasion of his passing in February brought on a surprising moment of equanimity. President Obama called Scalia a “brilliant legal mind” who “profoundly shaped the legal landscape.” The two GOP senators seeking the keys to the White House agreed; Ted Cruz praised the late jurist as a “defender of the constitution,” ex-candidate Marco Rubio echoed the president’s praise. Within days Mitch McConnell flipped, and Republicans have taken up “delay, delay, delay” as their banner.

The twisted logic being employed is striking: McConnell praised Justice Scalia for his “fidelity to the constitution,” yet the Senate majority leader and his comrades are dishonoring Scalia, and showing contempt for Article II by essentially ignoring it. The irony is that McConnell’s rationale is upside-down. “We, the people” already let our voice be heard when we sent a Democrat president and a Republican congress to Washington. If the Kentucky senator is intent on denying this president a third appointee he simply has to hold his fellow GOP senators together in voting their opposition. Then the range of justifications supporting his cause would not be needed. Ted Cruz would not have invented “80 years of precedent of not confirming justices in an election year,” New York Senator Chuck Schumer would not be getting needless questions about a speech in 2007 on George W. Bush’s nominees, and the so-called ‘Biden Rule’ would have been consigned to history.

The fur is flying now that the president named Merrick Garland as Scalia’s potential heir. Harry Reid started in by describing the feud as a “shameful abdication” of Senate responsiblity. Senator Schumer trotted out the spectre of Donald Trump when he roped the entire caucus to the GOP frontrunner by alleging Republicans want the New York mogul to appoint the next justice. The sharp elbows are only the beginning — protesters are filtering out to states like Pennsylvania, Ohio, and New Hampshire to spread the word. They’re playing the Trump card; both protesters and Senate Democrats are mingling “advise and consent” with “confirm” in an attempt to redefine the Senate’s role in their favor. Why? The stakes are high because of the bundle of hot-button issues on the docket, everything from abortion and voting rights to affirmative action and immigration.

On an evenly divided court with a list of 5-4 rulings like Obergefell vs. Hodges and Citizens United vs. FEC that single vote is crucial. But McConnell is upside-down again, and so is Chuck Grassley. The Judiciary Committee chairman’s refusal to hold hearings on Judge Garland’s nomination is no sign of resolution or defiance, it is the definition of weakness. If Judge Garland is an ideologue or otherwise unfit for the court, McConnell and his colleagues should be eager to meet with Garland in advance of a high-profile, public showdown. Every GOP senator playing along is running scared from a 63-year-old appelate court judge and the Democrats supporting his bid. Obstruction is not a winning strategy. Senators like Mark Kirk, Susan Collins, and Jerry Moran are breaking ranks with their leader because they can see writing on the wall McConnell cannot.

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