BOGUS “SENATE RULE” BEING CONSIDERED FOT NULIFYING AN OBAMA “SCOTUS” NOMINEE

…The legal home of Antonin Scalia for 29 years

 

It’s Obama’s responsibility to nominate a new Supreme Court Justice, but expect GOP delays.

 

 As we all know, one of the longest effects of any US president’s decisions is their nominations of a justice for the Supreme Court of the United States (SCOTUS).  This action by each president is solely theirs.  There may be lots of advisors and recommendations, but the actual action of the nomination rests directly on the shoulders of the president.

 

In fact, after a nominee becomes an actual justice, they will many times be referred to as the “Bush Justice” or “Reagan Justice”, just as Justices Sotomayor and Kagan are referred to as “Obama Justices”.

 

It is probably appropriate that upon a the sudden death of the long-time conservative justice, Antonin Scalia, the Republicans would immediately say that during an election year, the president should not nominate a new justice.  They will say, “It should be the next president’s job to nominate.”  Of course, they’re hoping that the next president will be a Republican, especially since the current Senate for approving a Supreme Court nomination is already heavily Republican.

 

But the reality is that if the president followed that advise, that would leave a number of important issues now before the court in limbo for over a year.  And it is the current President’s responsibility to nominate a new justice.

 

Now today, the Democrats have no ammo to get a nomination passed, much less even get the senate to take a vote on a nominee.  Both the US Senate and the House are run by the other party.  All the Democrats have is the power of the president’s “Bully Pulpit” to go around the country telling the nation that he has done his job, while the Republicans in the US Senate are not doing their job in voting on a properly nominated justice.

 

Now it’s true that the GOP majority in the senate could just vote down any Obama nominee.  But if the nominee had been chosen as someone that had previously been confirmed unanimously by a Republican for a lower court position, it might look overly political that they would vote against a nominee for which they had unanimously voted.

 

Upon hearing of Justice Scalia’s death, Senate Majority Leader Mitch McConnell (R-KY.) immediately stated that, "The American people‎ should have a voice in the selection of their next Supreme Court Justice.  Therefore, this vacancy should not be filled until we have a new President.”  Well, sorry Mitch, but the American people voted for President Obama in 2012, so they have had their say on whom should do the nominating.

 

Senate Minority Leader Harry Reid (D-NE) has fired back at McConnell saying that spending an entire year without considering Obama's nomination to replace Scalia is unprecedented.

 

"It would be unprecedented in recent history for the Supreme Court to go a year with a vacant seat.  Failing to [vote for] filling this vacancy would be a shameful abdication of one of the Senate's most essential Constitutional responsibilities."

 

In reality, what could happen is that the GOP might pull out of the closet the old “Thurmond Rule”.   However, back in 2008, when President Bush was trying to get judicial nominees through a Democratic-controlled Senate, the then-minority leader McConnell had said "There is no Thurmond Rule."

 

Actually, McConnell was correct.  It is not a Senate Rule.  It's an item known as the "Thurmond Rule”, for which I will explain later, but there is widespread disagreement on what it even means and when it can be invoked.

 

"It's not a rule," said Russell Wheeler, a judicial expert with the Brookings Institution. "It's just sort of a pie-in-the-sky flexibility that both parties try to disown when it's convenient for them and try to say it means something when it's not."  It’s an issue that pops up throughout recent history, whenever a high-stakes judicial nomination collides with a presidential election.

 

But the Republicans are already asking “whether it's fair to consider a life-time judicial nominee by a lame-duck president before such a pivotal presidential election”.  The issue is that President Obama is not a “lame-duck” president.  He is the President and Commander-in-Chief until the middle of January 2017.  He would only be a “lame-duck” president after the November election.

 

The president’s responsibility is to nominate someone to replace Antonin Scalia, and it’s the senate’s responsibility to vote them up or down….period!

 

Now, here’s the explanation for the so called, “Thurmond Rule”.

 

It’s not a rule, it’s a senate guideline and here's its background:

 

In the summer of 1968, Sen. Strom Thurmond (R-SC) opposed President Lyndon B. Johnson's choice of then-Justice Abe Fortas to the top spot on the Supreme Court of Chief Justice. Now remember, in the Senate, one senator can block just about anything.

 

Thurmond's rationale for blocking Fortas's promotion was both Parliamentary and political. Johnson, who wasn't running for reelection, was a true “lame duck”. His proposed promotion for a Supreme Court justice came just six months or so before the presidential election that the Republicans had a good chance to win.

 

Thanks to Thurmond's opposition, Fortas never got the top job. And opposing judicial nominations in the summer before an election year became known as the “Thurmond Rule”. The judicial battle of the summer of 1968 rears up in the Senate from time to time, especially in cases where the opposition party hates the sitting president.  Needless to say, that is the case today.

 

Back in 2004, Senate Democrats, also then in the minority, they debated dusting off the then-dormant "Thurmond Rule" for blocking President George W. Bush's nominees just before the election.  It had been so long that the “Thurmond Rule” had been considered that many senators confessed that they didn't even know what the rule referred to.

 

Nine months before this presidential election, it sounds like McConnell will try to block Obama's nominee to fill Scalia's seat. And whether he tries to invoke Thurmond or not, he will have the votes to be able to vote down any Obama nominee.

 

Copyright G.Ater  2016