Um… Folks, choosing a president was already a weighty thing. The death of a justice did not make it more so…

Paul Krugman has it half right here:

Once upon a time, the death of a Supreme Court justice wouldn’t have brought America to the edge of constitutional crisis. But that was a different country, with a very different Republican Party. In today’s America, with today’s G.O.P., the passing of Antonin Scalia has opened the doors to chaos.

In principle, losing a justice should cause at most a mild disturbance in the national scene. After all, the court is supposed to be above politics. So when a vacancy appears, the president should simply nominate, and the Senate approve, someone highly qualified and respected by all.

In principle, losing a justice should cause at most a mild disturbance in the national scene. After all, the court is supposed to be above politics. So when a vacancy appears, the president should simply nominate, and the Senate approve, someone highly qualified and respected by all.

He’s absolutely right that there’s something seriously wrong when the whole political system goes ape over a vacancy on the Supreme Court. He is absurdly wrong in suggesting that this is somehow completely the fault of the Republicans. See “Bork as a verb” and “Clarence Thomas Supreme Court Nomination.” While the Republicans are definitely outrageously dysfunctional, and their assertion that the president shouldn’t nominate in this situation is sheer lunacy, they did not invent making a circus of the nomination process. At least, they didn’t do it alone; they had very enthusiastic help from the Democrats.

Krugman, like Bud, utterly rejects this truth: “Second, it’s really important not to engage in false symmetry: only one of our two major political parties has gone off the deep end.”

But let’s talk about the half of what Krugman said that is right.

Ever since Saturday, I’ve been seeing and hearing something… eccentric… in coverage of the death of Scalia and its aftermath.

There is this suggestion out there that now that there’s a Supreme Court vacancy, suddenly this election is serious. Now we’re going to see more money given, more heightened rhetoric, a sense on both sides that the stakes have gone up…

Say what? Um… the election of the president of the United States, in whose hands all executive authority is concentrated, is and always was a bigger deal than filling a vacancy of one-ninth of the Supreme Court.

In fact, if both parties respected the rule of law (as Mr. Krugman seems to think Democrats do), the selection of justices should not be an electoral issue at all. If presidents and senators simply looked at qualifications (as some, such as our own Lindsey Graham, still do), it would be insane to talk about the kinds of nominees a presidential candidate would put forward in partisan terms. Actually, it is insane to frame something so secularly sacrosanct in such terms. But that’s what we do now, every time…

54 thoughts on “Um… Folks, choosing a president was already a weighty thing. The death of a justice did not make it more so…

  1. Brad Warthen Post author

    Trying to justify his one-sided worldview, Krugman writes: “So why do I say that only one party has gone off the deep end? One answer is, compare last week’s Democratic debate with Saturday’s Republican debate. Need I say more?”

    Yep, you sure do. Here’s what I had to say about the GOP contest Saturday night:

    And in case you forgot about the Democratic debate I refer to:

    Anyone who hears the absurdity in one party’s debates and not in the other’s really needs to get his ears checked…

  2. Bryan Caskey

    Once upon a time, the death of a Supreme Court justice wouldn’t have brought America to the edge of constitutional crisis.

    Again with the Constitutional crisis? Apparently, the Democratic strategy to force a confirmation is to run around and light their hair on fire saying “crisis, crisis, crisis!

    It’s not a crisis if the Senate doesn’t want to confirm a nominee. For that matter, there’s nothing magical about the number nine. Go ask FDR.

  3. Bryan Caskey

    Just for context, let’s think about why the Supreme Court has taken on such a large role in our political life. Why is that, exactly?

    It’s because the Supreme Court has gotten away from the role of studying legal texts and discerning their meaning. Nowadays, the Supreme Court makes a whole lot of “value judgments”.

    “As long as this Court thought (and the people thought) that we Justices were doing essentially lawyers’ work up here–reading text and discerning our society’s traditional understanding of that text–the public pretty much left us alone.

    Texts and traditions are facts to study, not convictions to demonstrate about. But if in reality our process of constitutional adjudication consists primarily of making value judgments; if we can ignore a long and clear tradition clarifying an ambiguous text, as we did, for example, five days ago in declaring unconstitutional invocations and benedictions at public high school graduation ceremonies, if, as I say, our pronouncement of constitutional law rests primarily on value judgments, then a free and intelligent people’s attitude towards us can be expected to be (ought to be) quite different.

    The people know that their value judgments are quite as good as those taught in any law school–maybe better. If, indeed, the “liberties” protected by the Constitution are, as the Court says, undefined and unbounded, then the people should demonstrate, to protest that we do not implement their values instead of ours.

    Not only that, but confirmation hearings for new Justices should deteriorate into question and answer sessions in which Senators go through a list of their constituents’ most favored and most disfavored alleged constitutional rights, and seek the nominee’s commitment to support or oppose them. Value judgments, after all, should be voted on, not dictated; and if our Constitution has somehow accidentally committed them to the Supreme Court, at least we can have a sort of plebiscite each time a new nominee to that body is put forward.”

    Stuff Scalia Actually Wrote Down (Vol. XII)

  4. Karen Pearson

    Did you see Sen. Lindsay jump right on the GOP no-new-Supreme-Court-judge-until-after-the-election bandwagon? Not a statement refusing people who are too far to the left, nor an affirmation of his willingness to carry out his duty per the constitution, just echoing the party of NO.

    1. Brad Warthen Post author

      No, but if that’s the case, I’m very sorry to hear it. He’s about the only member of the Senate of either party who has NOT engaged n that kind of behavior.

      1. Doug Ross

        It’s an election year. Lindsey is a shameless panderer during each election cycle. It’s he lying now or lying later when he preaches working together? My answer: both times.

      2. Lynn Teague

        I would be very sorry to hear this too. He has said in the past that “elections have consequences” in the context of judicial advice and consent and the obligation to judge on qualifications. I hope he jasnt got over to the dark side on this.

        1. Lynn Teague

          Googling hasn’t turned up a Graham statement saying Obama shouldn’t nominate and Senate shouldn’t vote. He has said nominee should be a “concensus choice” but that is always true. So I’d want to see a reference before being convinced Graham has lost his way that badly.

          1. Brad Warthen Post author

            I haven’t seen it yet, either. Could someone point me to it? It certainly wasn’t an official release. I looked back through my emails, and all I found was a statement expressing sorrow at Scalia’s passing.

            1. Mark Stewart

              I think I heard him say just about that at the Jeb! event for “W The President” yesterday – right before I turned off the TV.

              That and Trump going absolutely gonzo on Cruz (who did deserve it) in such a completely two faced way (Trump being the guy who says he saw Muslims laughing as the WTC came crashing down) just made it a President’s Day to hit Lowe’s and get some home projects tackled instead of following our charade of politics.

              It is completely gross what has happened to the GOP this year – though, as a Republican, I kind of think they deserve the self immolation they all seem to be enjoying. It is a total mess.

              1. Juan Caruso

                Mark, no one desrves Trumo more than “a Republican”. In my opinion, of course, that means Republichans.

      3. Lynn Teague

        The New York Times today lists Senator Graham among those who have NOT said that the Senate shouldn’t vote on an Obama nominee, and places him in the top 10 likely to vote their own minds rather than the party line. Big thank you to Senator Graham for this, with the secondary thought that we should not have to be so very relieved when a political figure basically says he’ll do his job with integrity.

  5. Burl Burlingame

    No constitutional crisis. The Constitution empowers the President to nominate a judge; it doesn’t say when. The Constitution doesn’t force legislators to legislate; it does empower work-arounds for the president if they don’t. There’s a lotta posturing goin’ on.

  6. Lynn Teague

    We’ve been through this before, but the Thomas case was not a case of partisan wrangling. The Democrats were as disgustingly good ol’ boy as the Republicans. Biden turned my stomach with his smirking denial of Hill’s corroborating witnesses and treatment of her during her testimony. Given no other way to challenge Thomas’ fitness for the bench (attempts were made, without success, to raise the issues privately) the Senate hearings were the only way to go. The people who most screwed this one up were the ones who insisted on nominating Thomas, and it wasn’t because of party. It was because they had contempt for women in the professional workplace. Brad, I’ve felt in the past and continue to feel that you are just totally out of touch with what was going on in the Thomas hearing. Anita Hill’s concerns weren’t trivial and weren’t partisan.

    1. Brad Warthen Post author

      I’m “out of touch” in that I saw the court, the Senate and our nation in general appallingly degraded by discussions of pubic hairs and Long Dong Silver.

      And I refer you to my link above to “Bork as a verb,” which includes:

      Perhaps the best known use of the verb to bork occurred in July 1991 at a conference of the National Organization for Women in New York City. Feminist Florynce Kennedy addressed the conference on the importance of defeating the nomination of Clarence Thomas to the U.S. Supreme Court, saying, “We’re going to bork him. We’re going to kill him politically … This little creep, where did he come from?”

      So yes, I associate the Bork case with the Thomas one.

      You may say I’m wrong to associate NOW with the Democratic Party. And no, they are not precisely the same thing. But they are certainly on the same side in most battles over court nominations.

      1. Doug Ross

        I didn’t really know who Strom Thurmond was in 1991, having just arrived in SC. His performance in the Thomas hearings was an embarrassment but made me realize just how messed up SC was politically. That Thurmond served 12 years after that time when he was barely functioning mentally is all you need to know about the voters in this state.

      2. Lynn Teague

        You can’t sell me on Florynce Kennedy’s stupid comment having anything to do with what happened in the Senate Judiciary hearing in the Thomas case. Reaching back to the distant days of my logic and philosophy of science classes, i’d have to say that “NOW agrees with Democratic positions on many issues, so a NOW leader’s comment means that the Democrats were responsible for the Thomas hearing (although the actual Democrats on the Judiciary Committee did everything in their power to kill Hill’s case and slide Thomas through the confirmation process)” is not a logically sound argument.

        The guys of the Senate Judiciary Committee, regardless of party, banded together to defend their right to consider Thomas’ extremely inappropriate treatment of a subordinate acceptable and even amusing. That was what was disgusting.

        1. Brad Warthen Post author

          I’ll plead guilty to suggesting guilt by association there. It was not a strictly logical argument. It was just on my mind, my having just read it.

          And it’s true that, if you walk into a room full of males of any age and say “Long Dong Silver,” sniggering will ensue, even if they’re at a funeral.

          I don’t RECALL the sniggering, but, in light of what I just said, I fully believe your recollection.

          But I can assure you that I, for one, did not find the spectacle as a whole amusing. It felt to me like the last days of a once-great nation. Remembering it puts me into full Mr. Darcy mode: “insupportable… At an assemblage such as this…”

        2. Mark Stewart

          Thank you, Lynn. Brad’s right that the stuff that was talked about in the Senate Judiciary hearings was completely inappropriate for the venue; but wrong to close his eyes to an embarassment that had to be confronted. This hearing started the ball rolling on really dealing with an issue that was swept under the rug for far too long. The workplace has for too long been the last bastion of ugly sexist behavior. In fact, I would say that it has really only been this decade that many companies have been willing to step up on this problem and remove the offenders – with finality.

          Today, Thomas would never have been appointed – and most likely never even nominated.

          I think that Biden’s decision not to run probably boiled down to this issue – especially as he has continued to display very poor decision making around this issue.

          1. Brad Warthen Post author


            And it should go without saying, but I’ll say it to make sure: Anything that inappropriate in the Senate committee room was equally inappropriate in the workplace, ANY workplace.

  7. Doug Ross

    Wonder if Lindsey’s choice of words here will be the final straw for Brad?

    “If a Democrat does the win the White House, presumably frontrunner Hillary Clinton, Graham said he could find a way to compromise. “If Hillary wins and picks a qualified candidate I’d vote for them,” he said.”

    1. Doug Ross

      Those of you who think McCain and Graham are some kind of different Republican are always going to be disappointed. At least most “regular” Republicans are partisan 100% of the time and don’t shift their views based on where we are in the election cycle. McCain and Graham are phonies.

    2. Brad Warthen Post author

      Well, McCain has disappointed me once or twice on confirmation votes. He hasn’t gone as far as Lindsey in demonstrating that he really believes that “elections have consequences.”

      1. Bryan Caskey

        Does the 2014 election where the GOP took over the Senate have any consequences, or does only a Presidential election have consequences? Is the Senate inconsequential?

        I’m just trying to figure out which elections have consequences.

        1. Bryan Caskey

          To me this is real simple. You want my consent? Okay. Nominate someone I will consent to. My parameters are an originalist. Oh, you don’t like that? Oh well, elections have consequences.

          1. Brad Warthen Post author

            Absolutely. The election of the president has consequences, so senators shouldn’t expect him to abdicate his constitutional responsibility and nominate somebody.

            And the elections of those Republican senators have consequences as well, and they should not be expected to just roll over for whomever the president wants.

            But I will still say what Graham has said so many times in the past: The standard for confirmation should not be that I’ll only vote for the nominee if it’s someone I would have nominated myself. If the person is qualified for the job, he or she should be confirmed.

            And I agree with Graham now that this is a great moment in our history for the president to choose someone who meets the Republicans (the real Republicans, not the Freedom Caucus) halfway.

            A consensus choice is what the country badly, badly needs right now. And the forces militating against it — pulling the president to the left, the GOP senators to the right — are so very powerful right now. Personally, I see them all as one factor — a sort of political centrifugal force, the main purpose of which seems to be to cause the country to fly apart…

            1. Bryan Caskey

              But I will still say what Graham has said so many times in the past: The standard for confirmation should not be that I’ll only vote for the nominee if it’s someone I would have nominated myself. If the person is qualified for the job, he or she should be confirmed.

              I understand where he’s coming from. I really do. But there are just too many cases that are 5-4 decisions that would be overturned if you put a reliable left-wing vote on the Court. For instance, Heller would be overturned. To me, that’s unacceptable. It’s a non-starter. I mean, we’re already at a place in politics where the Democratic candidates are explicitly saying their litmus test for a Justice is someone who will be a fifth vote to overturn Citizens United.

              Also, no one but lawyers will worry about Apprendi and its progeny either. The entire line of sentencing-reform cases was built on a 5-4 alliance between Scalia and Thomas and Justices Souter, Stevens, Ginsburg, Sotomayor, and Kagan, over the dissents of the law-and-order conservatives (Rehnquist, Roberts, and Alito) and the pragmatists (Breyer and Kennedy). Accordingly, it’s very possible that a liberal replacement will side with Justice Breyer and flip the balance in this as well.

              Medellin could flip, too. You want international law getting a foothold?

              The problem goes back to the fact that the Court used to be something that didn’t matter so much, so you could have this quaint view that the President got deference. The stakes weren’t so high. Now, the stakes are infinitely higher.

              It’s all so depressing, really.

              1. Brad Warthen Post author

                Yes, it IS depressing. And the only way to back out of it is to start having consensus candidates.

                I think Lindsey’s onto something.

                I hereby promise that if you vote for me for president, I will only put forth nominees to whom no one in the center-left or center-right could object to.

                Trouble is, there aren’t a lot of Centrists In the Senate anymore. There’s Graham, and Lamar Alexander, and, um… I don’t know, Bob Casey, the pro-life Democrat?… Help me, I’m reaching here…

            2. Karen Pearson

              No. Mr. Lindsay is willing to vote for the next president’s reasonable choice. This President is out of luck (unless he nominates Orrin Hatch).

    1. Bryan Caskey

      Transcript here.

      GRAHAM: George, I don’t really know who he could pick that could bring the whole body together. I voted for Sotomayor and Kagan because I thought they were qualified. Here’s the Lindsey Graham approach: When an election is over, the President wins. They have a chance to send qualified nominees of their philosophy to the Senate and I will vote for them if they’re qualified, even if I would not have chose them. But this President has abused power. The Democratic colleagues that I have worked with closely on other issues decided to change the rules in a historic fashion to pack the court and that abuse of power will have a consequence with me. But to conservatives, if Hillary Clinton wins the White House in 2017 and she sends over a qualified person who’s liberal, I’ll intend to vote for them the if they’re qualified. So, this election does have consequence.

      STEPHANOPOULOS: So, what are the odds of this vacancy is going to get filled?

      GRAHAM: Very little.


      GRAHAM: Yeah, very small.

      1. Brad Warthen Post author

        Oh I found THAT, but that wasn’t Graham jumping on the “don’t nominate” wagon. That was him describing what he saw as politically realistic at the moment. He’s talking about the likelihood of the Senate doing a certain thing, and I tend to agree with his assessment.

        What he says about himself is that this president, and Democrats in the Senate, have burned a lot of good will with him, to the point that he’s less likely to be as acquiescent as he usually is. I don’t read that as “don’t nominate anybody.”

        1. Bryan Caskey

          Here’s the only other thing I could find: “I will not confirm anyone on Obama’s watch unless it’s an overwhelming consensus choice,” he said.

          I read that as Graham saying: Unless Obama picks someone that is going to sail through 99-1, then he ain’t getting anything. Your mileage may vary.

          1. Brad Warthen Post author

            Yep, and that’s a harder line than he’s ever taken before.

            But you know what? I think he’s entitled, after backing Kagan and Sotomayor, to say “I’d like you to come my way this time, before I say ‘yes.'”

            Or, at least, to start with that as a bargaining position. He’s saying that if the president nominates someone only a Democrat could love, thereby enabling the Dems to play this as “those obstructionist Republicans” in November, he’s not going to play along.

            Graham has been putting the country first all along on these nominations. I hear him saying he’d like to see the president step up and show that he is clearly doing the same thing…

    2. Karen Pearson

      I might have, but I don’t think so, because I was surprised and disappointed at what he said. He’s usually a bit more diplomatic.

  8. Phillip

    There’s a big difference between debating and rejecting (or narrowly confirming) a SCOTUS nominee and claiming that the sitting President shouldn’t even nominate a justice (or practically doing so, by preemptively rejecting any possible nominee the President would make).

    Things may not be as one-sided as Krugman suggests, but it’s interesting to me that you are so decidedly opposed to drawing any kind of what you perceive to be false equivalencies between the actions of different countries, yet so easily willing to draw false equivalencies in domestic politics between the two parties or between two sets of political philosophies and the motivating force behind each.

    1. Bryan Caskey

      Are you seriously saying that the Democrats haven’t done exactly the same thing? Don’t get me wrong. I’m not saying that the Democrats should be happy about the situation, but let’s review:

      1. When Joe Biden & Co. squashed Robert Bork despite admitting that he was well-qualified, they all set the table for payback.
      2. When Harry Reid used the “nuclear option” and did away with the filibuster for federal judge appointments, he knew this might come back to bite him.
      3. When the Democrats didn’t allow Miguel Estrada to get a vote for the DC Circuit, they set the themselves up for retribution.
      4. When Senator Obama voted to filibuster Alito for SCOTUS, he opened himself up for getting paid back.
      5. When President Obama (throughout his Presidency) rammed things through and around Congress, he might have considered the repercussions.

      So now the GOP is finally turning the tables, and you claim this is a false equivalence?

      Now that I think about it, I’d prefer the GOP take the public position of advising Obama to nominate an originalist, and privately taking Michael Corleone’s position in serious talks: Nothing. Not even the fee for the gaming licence.

      1. Bryan Caskey

        Ok. That’s enough free arguing for the day, folks. I gotta go get ready to argue in court for someone who’s paying me to argue.

    2. Brad Warthen Post author

      But Phillip, this equivalency isn’t false. It is the height of absurdity for a Democrat to pretend for an instant that Republicans invented the sport of blocking and/or tearing down qualified nominees. It wasn’t Republicans who turned “Bork” into a verb. And that’s when it started.

      In this particular case, the Republicans are the obstructionists… for the simple and obvious reason that the president is a Democrat. But for Democrats to go around acting like because of that, they’re the good guys, is ridiculous.

  9. Phillip

    Not true, Brad, that Bork is “where it all started.” First of all, Bork was truly extreme philosophically. You have to remember that the Bork nomination took place closer to the time of passage of the Voting Rights Act (to which he harbored on-the-record hostility) than to our own time. Moreover, his role (in illegally firing Special Prosecutor Archibald Cox) in the Saturday Night Massacre was also only about a decade old at that point. Still pretty fresh in the memory. Reagan was sticking it in the face of Congress and the American people to make that nomination…Anthony Kennedy by contrast was a unanimous approval.

    It was not unheard-of to reject SCOTUS nominees even when Bork happened. The last times before that were, yes, voted down by Democrats mostly (but not exclusively…and don’t forget, some GOP members voted against Bork)…Haynsworth and Carswell in the early 70s as Nixon nominees…and again mostly for the same reasons as Bork (hostility to civil rights). But a few years before that, LBJ had to withdraw Abe Fortas’ nomination, and there have been other rejections in the past, of nominees by presidents in both parties.

    Bryan’s right about Obama’s vote on the filibuster, with which I don’t agree—nominees should get an up-or-down vote. So if this is just to get Obama back on a personal level, OK let’s just admit it. But, again, as Burl pointed out, Bork did get his up-or-down vote. And in the end, so did Alito.

    Harping on this one phrase of Bork-as-a-verb ignores the long history of occasionally-contentious SCOTUS nomination processes. The Republicans can vote down whoever Obama nominates, but for them to not even make a show of pretending to consider a nominee, or to suggest that Obama not even bother nominating anybody, is taking it to an entirely different level. It’s pretty much just saying that their philosophy of governance is motivated first-and-foremost by personal animosity. And gee whiz…some people then wonder how a guy whose whole demeanor is defined by expressions of animosity and hostility might become a major party’s nominee.

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