New York Times
By Carl Hulse
February 21, 2016
The prospect of the Supreme Court’s sitting for a year or even longer at less than full strength means the partisan warfare that has overtaken Washington could produce a whole new kind of government shutdown — one limiting the court’s ability to fully function.
The rampant dysfunction that has riven Congress and undermined relations between the executive and legislative branches in the Obama era now threatens to engulf the nation’s highest court at a moment it could be deciding fundamental issues on abortion, affirmative action and immigration, just to name three.
Democrats outraged by the vow of Senate Republicans to ignore any Supreme Court nominee say they see the same conservative mind-set that led to a shutdown of government agencies in 2013 at work even though, when it comes to the courts, they have used obstructionist tactics in the past as well.
“This stance by the Republicans epitomizes what people regard as the worst characteristics of Washington today, partisan paralysis and gridlock, the game playing and blame-gaming that people find so abhorrent,” said Senator Richard Blumenthal, Democrat of Connecticut.
President Obama made a similar point in a news conference last week, saying the looming court fight is “a measure of how, unfortunately, the venom and rancor in Washington has prevented us from getting basic work done.”
As they return to Washington on Monday to face an onslaught of questions about their strategy, Senate Republicans are playing down any practical consequences for the court. They say that it is not uncommon for justices to rule with just eight members and that most decisions are not of the narrow, 5-to-4 variety associated with some of the more momentous recent rulings.
“The Supreme Court can function just fine, in the vast majority of cases, with eight members,” John Cornyn of Texas, the No. 2 Senate Republican and a member of the Judiciary Committee, said during an interview with a Lubbock radio station. “It does that occasionally when individual members are recused. That’s my position, that there should be no one appointed to that seat until the next president is elected.”
If Republicans hold out against acting on the nominee or even reject one put forward, the wait to fill the seat could stretch well into 2017. A new president will not take the oath of office until Jan. 20, and that would be the earliest the lengthy nomination and confirmation process could begin. In addition, the Senate will be overwhelmed with the flurry of cabinet and other high-level nominations that come with a new administration, crowding the calendar.
What’s more, any bitterness and retribution from a stalemate over filling the vacancy caused by the death of Justice Antonin Scalia could very easily spill into the future confirmation fight, delaying the proceedings even more.
“The fact is, no one knows who is going to win the election,” said Richard G. Lugar, the former Republican senator from Indiana. “Therefore, speculating that whoever is nominated is going to be in a better position may be an error.”
Mr. Lugar, a centrist who lost his re-election primary to a Tea Party-aligned candidate in 2012, urged his former Republican colleagues to move ahead once the president has made his choice.
“I can understand their reluctance given the controversy that surrounds all of the debate that has already occurred,” Mr. Lugar said. “But that is not sufficient reason to forgo your duty.”
His view was shared by Olympia J. Snowe, a former moderate Republican senator from Maine. “I believe that the process should go forward and be given a good-faith effort — and ultimately people will come to their own decision on a vote on a nominee,” she said in a statement.
Of course, Ms. Snowe and Mr. Lugar no longer have a vote in the Senate. Many would point to their very absence — and the continuing decline in the number of lawmakers like them — as a major contributing factor to the gridlock that has plagued Congress, leaving so few voices in the middle to provide a counterweight to the extremes on both the right and left.
The incipient Supreme Court fight moves into a new phase this week as lawmakers return to Washington after a holiday recess that followed Justice Scalia’s death. Now they will take their perspectives on the court fight to the committee rooms and hallways of the Capitol, as well as to the floor of the Senate and even the House, where conservatives will exhort their Senate colleagues to stand strong while Democrats denounce the Republicans.
Senator Mitch McConnell, the Kentucky Republican and majority leader, seems determined to hold his ground against initiating confirmation proceedings. Democrats, heartened by polls that show most Americans believe the Senate should act to fill the vacancy, intend to try to make Republicans pay for their refusal to do so. The clash is likely to erase even the modest gains that have been made in making the Senate more productive as each side seeks opportunities to punish and embarrass the other.
But Republicans also know that the stakes at the Supreme Court are likely to be an animating issue in the fall, energizing their conservative base as the party tries to maintain control of the Senate in addition to winning the White House. Democrats have a similar calculation from the opposite perspective.
Republicans have a deep distrust of Mr. Obama and are certain their supporters do as well. They believe Republican voters see Mr. Obama as a chief executive who has flouted the Constitution through a variety of executive actions, forfeiting his right to appoint a new justice who could be the deciding vote in ruling on the legitimacy of the very actions taken by the president.
Mr. Cornyn, in his radio interview, called Mr. Obama “a president who just seems to be untethered and unconstrained by the Constitution and the laws passed by Congress.” He anticipated little pressure from his Texas constituents and predicted Republicans could take what came.
“That goes with the territory. That’s what the job entails,” he said. “We have drawn the line in the sand and said it is not going to happen. We just need to hold that position, and I am confident we can.”
Lines in the sand and holding that position — it sounds like advocates of breaking this new Senate stalemate have a lot of work ahead of them.
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