Sorry Ted Cruz, it is Obama’s Duty as President to Name a New Supreme Court Justice

In the great debate over civil rights and an independent judiciary that consumed the German Reichstag in October of 1877, the Catholic parliamentarian Ludwig Windthorst decisively broke with the Prussian Chancellor, Otto von Bismarck, and his brand of conservatism: “‘Conservative’ means to conserve the given, legitimate institutions in State and Church,” Windthorst said. “It does not mean to arm a government with omnipotence, with which it can modify those institutions at will. So long as you confuse conservatism with Polizeiwirtschaft (a police state) an alliance with you is certainly unthinkable.”

Nor does a genuine conservatism empower one party to remake all the institutions of government into creatures of its will, which is what the faux-conservatives in the U.S. Senate actually are attempting with their plans to block anyone President Barack Obama nominates to fill the Supreme Court seat left vacant by Justice Antonin Scalia’s unexpected death. While the GOP lawmakers—and, particularly, the most extreme among them—like to style themselves guardians of the Constitution, nothing could be further from the truth in this case. The Constitution lays out three co-equal branches of government, each with distinct obligations and powers, and each respectful of the others prerogatives—and, by implication, each mindful of the differences in process and outlook that necessarily rise from distinct functions.

What the Senate Republicans now propose is to abuse their constitutional power to give “advice and consent” on presidential appointments by denying the chief executive the exercise of his responsibility to name members of the Supreme Court. Even worse, they propose that the judicial branch should be remade into a wholly partisan institution rather than an honest broker of the law’s application. In other words, the values and goals of the current Senate majority would be made superior to those of the other two branches of government. So much for “co-equal.”

What’s occurring now in Washington is not an assertion of “conservatism;” it’s a putsch–and it’s been underway for some time.

As the New York Times reported Tuesday, the current GOP majority in the Senate has been denying Obama the right to name justices to the 12 regional appellate courts ever since the last election. Only once such nominee has been confirmed and Republican senators have declined to vote on nominees whose initial appointment to the federal trial bench they supported, sometimes unanimously.

That’s about as naked a display of partisanship as we’re likely to see. Despite what conservative commentators may say, there is no precedent for denying a president judicial appointments at this stage in his term. They were made as recently as the Clinton and George W. Bush Administrations. Both those presidents named 60 appellate justices. It now appears that Obama will leave office have won confirmation of just 48 such nominees.

In fact, Obama will leave office having appointed the fewest appellate justices during the last two years of his term since the appeals court were created in 1891. (Grover Cleveland appointed none, but that’s because no vacancies arose during his final 24 months in the White House.)

Along with their fidelity to a version of the Constitution that exists mostly in their imaginations, the Republicans’ faux conservatives like to justify their willful assertion of power by appealing to a history they seem to wish into existence.

Hence Ted Cruz & Co’s insistence that there nothing novel about what they’re doing and that “lame duck” presidents historically do not make judicial appointments. First of all President Obama is not a lame duck. That phrase describes a president during the period between his successor’s election and their inauguration. There’s nothing particularly unusual about a Supreme Court nomination during a chief executive’s last year in office. There have been, in fact, 13 such nominations, 11 of which were confirmed. In 1932, for example, Herbert Hoover named Benjamin Cardozo to the court during his last year in the White House. We even have a recent example of a successful lame duck appointment, since Justice Stephen Breyer, who was nominated by Jimmy Cart, was confirmed while Ronald Reagan was waiting to take office after his November election.

To find precedents close to what the Senate Republicans propose to do, you have to go back to the 19th Century. When two justices died during John Tyler’s presidency (1841-1845), he had nine nominees rejected over his last 15 months in office by his Whig opponents in the Senate, who were trying to preserve the seats for Kentucky Sen. Henry Clay, who they expected to win the election of 1844. In 1866, the radical Republicans in control of the Senate actually voted to reduce the size of the court so they would not have to consider President Andrew Johnson’s nominee.

We’re all going to get a double dose of apocalyptic hyperbole over the next few months. Two things deserve to be kept in mind above all others: No matter what they may say, the real history of this country and its constitution do not support the Republican putsch.

The people of this nation twice elected Barack Obama to be president of these United States and one of the duties of that position is to name Supreme Court justices. There is neither Constitutional nor historical precedent for obstructing him in the exercise of that responsibility, as the Senate’s bargain basement Bismarcks are attempting to do.

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