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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