By Stephen D. Foster, Jr. / 03.31.2016
Senate Republicans were just taken to the woodshed by a historian for their unprecedented obstruction of President Obama’s Supreme Court nominee.
Ever since Justice Antonin Scalia died in February, Republicans have used every excuse they can think of to justify their refusal to even consider anyone President Obama picks to fill the vacancy.
And in response to an op-ed written by GOP Senator Orrin Hatch in which he lists several of those excuses, a historian fired back with an op-ed of his own completely burying each and every one of them.
When Hatch suggested the rules are different when replacing one of “the greatest jurists in our nation’s history,” Wofford College Professor Mark S. Byrnes replied, “it does not matter who the president is replacing. All openings on the Court are created equal.”
And frankly, Scalia was one of the worst Supreme Court Justices this country has ever had the misfortune to witness. He was easily swayed in his decisions by gifts from those who wanted him to rule a certain way and many of his dissents are nothing more than glorified temper tantrums that had little to do with constitutional interpretation and more to do with failing to force another aspect of the right-wing agenda down our throats.
Byrnes then scorched Hatch for accusing President Obama of disagreeing with Scalia’s philosophy and reminded him that, “When the electorate once again decisively elected Obama as president in 2012, it did not include an asterisk that said he could only replace justices with whom he agreed.”
Indeed, if that were the case we wouldn’t have Clarence Thomas on the bench because former President George H. W. Bush would have had to nominate someone with a liberal philosophy similar to Justice Thurgood Marshall, whom Thomas replaced, to the high court.
Hatch also complained about President Obama opposing two nominees of former President George W. Bush as a senator and claimed Obama has repeatedly exceeded constitutional authority. Byrnes slapped those two excuses down by noting that at least Bush’s nominees received a vote and that if Republicans really believed Obama has done something wrong they would have drawn up articles of impeachment by now.
Hatch also pointed out that Americans chose a Democratic president and a Republican Senate, but that was easily countered as well as Byrnes noted that Obama nominated centrist Merrick Garland to the Supreme Court. “He did not chose someone who was a darling of the Democratic left, but someone who has (in the past) been repeatedly praised by Republicans, including Hatch himself,” Byrnes noted.
Byrnes then lambasted Hatch for getting American history wrong.
Hatch claimed in his op-ed that, “Throughout its history, the Senate has never confirmed a nominee to fill a Supreme Court vacancy that occurred this late in a term-limited president’s time in office.”
And Bynes really handed Hatch his ass on this claim.
As a history teacher, I am used to the instinct unprepared undergraduates have to bolster a poor argument with the “throughout history” trick. I expect better of United States Senators.
Hatch shows his contempt for his readers with this tortured construction. To make his “throughout its history” line work, Hatch needs to make that history awfully short. He does that with the phrase “term-limited.” The 22nd Amendment, which imposes term limits on presidents, has only been in effect for 65 years. So this particular “throughout its history” means for 65 years—less than Hatch’s own life span.
Bynres goes on to note that “there has only been one other vacancy during that period that was “this late” in a president’s term: LBJ’s nomination of Abe Fortas in 1968.”
Yes, Fortas was not confirmed as Chief Justice. That nomination received a hearing, however, and a vote. It was not met with this disingenuous nonsense that “we never do this.” And as Hatch well knows, 1968 was one of the most contentious elections years in American history. Somehow, the Senate still did its job.
Byrnes also blasted Hatch for using how nasty the current election has been as an excuse to not do his job because only Republicans have made the election nasty thus far. And when Hatch claimed that both parties have politicized the confirmation process, Byrnes observed that only Republicans are escalating the politicization to an unprecedented height this time around.
In his conclusion, Byrnes urged Republicans to stop acting like “cowards” and stop pretending that their obstruction is about something more than just trying to keep the Supreme Court conservative.
If Hatch and his fellow Republicans want to vote against Judge Garland, they have every right to do so. But they should stop being cowards. They should make a substantive argument against him. vote against him, and accept the political consequences of that vote. They should stop pretending that this reckless path they have chosen is anything but a desperate attempt to hold onto a Supreme Court majority.
Seriously, Senate Republicans need to stop with the excuses and do their job. They have thrown their little temper tantrum and they have lost the argument repeatedly. Every excuse they have offered has literally been destroyed by facts and historical evidence. They need to get over it and get the Court back to full capacity or the American people will have another real excuse to boot them out of office in November.