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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