Congressional Republicans have taken obstruction to a new level. They’ve moved from shutting down the government to shutting down democracy.
They say that President Obama, twice elected president by a majority of American voters, does not reflect the nation’s will and therefore should not carry out his constitutional duty to nominate a Supreme Court justice to replace the late Antonin Scalia.
Republican members of the Senate Judiciary Committee, including North Carolina Sen. Thom Tillis, sent a letter to Senate Majority Leader Mitch McConnell on Tuesday endorsing McConnell’s call to refuse to hold hearings on any nominee until after the next president is sworn in on Jan. 20. Tellingly the senators misconstrue the Constitution when their letter says, “The president may nominate judges of the Supreme Court.” What the Constitution says is the president “shall” nominate.
It is clearly Obama’s constitutional duty to ensure that the high court is fully seated with nine members, and he intends to fulfill that duty. The Senate is free to reject Obama’s nominee, but it is not free to reject its constitutional duty to “advise” the president on his choice and decide whether it will “consent” to it.
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The Republican Judiciary Committee members argue that hearings on a Supreme Court nominee would be too contentious and polarizing in a presidential election year. To support that claim, they’ve scrubbed the record looking for Democratic senators who have made such a claim about election-year nominees, and they’ve found a few. But speculative comments from sole senators in different times and contexts hardly justify a concerted effort to actually block not only the approval but even the consideration of a nominee.
For all their avowed reverence for the Constitution’s language, the Republican senators are making a deliberately distorted reading of its directive. Not only does their stance reject a clause of the Constitution, their justification casts doubt on the system the Constitution constructs and protects. They are questioning the democratic legitimacy of the president and doubting the ability of the democratic system to withstand the pressures of both a presidential election and hearings on a Supreme Court nominee. With that, they dismiss the authority and the resiliency of American democracy.
By failing to cooperate with the constitutional mandate, Republican senators are elevating destructive obstruction over constructive process and claiming full responsibility for the gridlock that has hindered the nation’s progress throughout most of Obama’s tenure. They are also impairing the function of the Supreme Court, leaving it unable to resolve 4-4 votes. And finally, and most dangerously, they are openly politicizing the high court and destroying public confidence in its independent and objective interpretation of the law.