Bloomberg View (Opinion)
By Francis Wilkinson
February 16, 2016
Republicans insist on strictly following the Constitution. Just not right now. Now is special, they say. Now is not the time to resort to a nitpicky document drawn up by bewigged ancients.
No, for Republicans, the only sensible course now is to be governed by norms -- those long-established byways that govern the behavior of esteemed institutions such as the U.S. Senate without having been written into the Constitution or Senate rules. Actually, what Republicans want is not so much adherence to longstanding norms as adherence to a single, somewhat suspect and short-standing norm -- the "Thurmond Rule."
The Thurmond Rule is not one of the Senate's more concrete guides. Politico in 2008 reported that it "decreed that no lifetime judicial appointments would move in the last six months or so of a lame-duck presidency." Democratic Senator Dianne Feinstein of California had invoked it that year, saying specifically that the Senate shouldn't push through any controversial nominees to lifetime appointments after June of President George W. Bush's last year. In response, a Bush White House spokeswoman said that the “only thing clear about the so-called ‘Thurmond Rule’ is that there is no such defined rule.”
After the death of Supreme Court Justice Antonin Scalia last week, the New York Times reported that the newly relevant rule "has its origins in June 1968, when Senator Strom Thurmond, Republican of South Carolina, blocked President Lyndon B. Johnson’s appointment of Justice Abe Fortas as chief justice."
Thurmond is most famous as a Dixiecrat who impregnated his family's 16-year-old black housekeeper and kept their daughter a lifelong secret. A hazy, ad-hoc rule uniquely identified with a racist hypocrite might not be a fount of righteousness. But it's the leaky base on which Republicans now rest their case.
The party's inability to reckon with the loss of consecutive presidential elections is pitiful. Republicans dominate statehouses across the land but are so convinced of their own weakness and unpopularity that in state after state they've erected barriers to voting, hoping simply to shave a couple of poor people's votes off the tally here and there. They have large governing majorities in the House and Senate, yet time and again argue and second-guess their way into legislative paralysis or buffoonery.
Their Bourbon fiscal policies anticipate the deluge, seeking to shovel as much gold as possible into the coffers of the ruling class before the revolution, leaving only deficits behind for the hordes gathering restlessly outside the palace walls. Meanwhile, they ask themselves how the likes of Donald Trump and Ted Cruz ended up as viable candidates for their party's presidential nomination.
We still don't know how far down the Republican Party has to go before it begins to bounce back. Cruz low? Trump low? Lower? After the last presidential election, party operatives produced a blueprint calling for moderation and, essentially, a re-engagement with mainstream American national life. Since that 2013 document was issued, the party has accelerated its retreat, engaging in massive resistance to cultural, demographic and political change that it can slow but not stop.
The Supreme Court's conservative majority is the ultimate brake on 21st-century designs. Thus the conservative howls of outrage when Chief Justice John Roberts or frequent swing vote Anthony Kennedy declines to stop the train. Scalia, by contrast, stood reliably athwart history. He did his best to kill Obamacare and established, even at the risk of creating it, the individual right to possess firearms, among other accomplishments.
His death has induced panic. Flustered Senate Majority Leader Mitch McConnell failed even to rely on artifice; normally shrewd and strategic, he simply announced that the Senate would not consider Obama's nominations for the vacancy -- 11 months before the president's term ends. Senate Judiciary Chairman Charles Grassley of Iowa subsequently implied that he might hold hearings but not allow them to get so out of hand that they actually lead to a new justice on the court. “This is a very serious position to fill, and it should be filled and debated during the campaign and filled by either Hillary Clinton, Senator Sanders or whoever’s nominated by the Republicans," he said.
Imagine how a more confident political party might behave. A president of the opposing party would nominate a replacement, and the Senate majority would use the subsequent hearings to showcase its judicial and political philosophy, drawing contrasts with an outgoing president possessed of middling approval ratings and a party inextricably tied to him.
At the very least, the hearings, controlled by the majority party, would show that party in its preferred light, providing its candidates with a strong push toward victory in November. In a best-case scenario, it would provide the public rationale for rejecting the president's choice, further undermining his standing in advance of the election.
For a party with faith in itself and in the American project, a Supreme Court vacancy is worthy of a pitched, strategic battle. But Republicans don't believe they have a popular judicial or political philosophy, and they are so dependent on the court's activist conservative bloc that a potential shift of a single judge is deemed catastrophic.
What defines the party is an abiding fear of the future combined with an unwillingness to adapt to meet it. (That Obamacare replacement is coming any day now.) Republicans are the wrench in the works, halting all they can without a plan for the day after the machine breaks. The only question is whether the machine breaks first, or the party does.
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