Orrin Hatch's Embarrassing New York Times Op-ed

This piece was originally published on History News Network

Senator Orrin Hatch took to the New York Times op-ed page to try to make the case for the Senate refusing to take up President Obama’s Supreme Court nominee.

It didn’t go well.

He starts by praising the late Antonin Scalia, implying that the rules should be different when replacing one of the “greatest jurists in our nation’s history.” The obvious reply is that it does not matter who the president is replacing. All openings on the Court are created equal.

Hatch then asserts that Obama has “contempt” for Scalia’s judicial philosophy. That may or may not be true, but in any case, it is irrelevant. 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.

His next point is that when a senator, Obama opposed two of President Bush’s nominees. Again, this is irrelevant. No one is claiming that Hatch or any other Republican has to support Obama’s nominee—just that Judge Garland deserves a hearing and a vote. Republicans now are as free as Obama was then to oppose the confirmation of the nominee.

Hatch then moves on to even more absurdly irrelevant points, such as his assertion that Obama has “consistently exceeded the scope of his legitimate constitutional authority.” Putting aside how questionable that point is, what Hatch seems to be suggesting is that if senators think such a thing about a president, the president loses the right to exercise legitimate constitutional powers. The Constitution provides Congress with a remedy for a president who exceeds the scope of legitimate constitutional authority: impeachment. The simple fact that a Republican House has not taken up impeachment reveals Hatch’s point for the nonsense it is.

He then notes that the American people have chosen a Democratic president and Republican Senate. Fair enough. But that in no way leads to Hatch’s conclusion that the Senate can therefore ignore the nomination. What that “split decision” suggests is that the Democratic president should nominate a person who is not his political ideal, but a compromise candidate more acceptable to that Republican Senate. By choosing Merrick Garland, that is precisely what Obama has done. He is respecting the idea of checks and balances, both institutionally and politically. 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. By refusing to even consider the nominee of the elected president, it is Hatch and the Senate Republicans who are not respecting the “split decision” of the American people, not the president. They are saying that the smaller subset of the American public that elected those Senate Republicans can simply ignore the decision of the entire national electorate in the last presidential election.

For an historian, perhaps the most offensive point Hatch makes is this: “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.” 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.

As I pointed out in my previous piece on this subject, 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.

That leads to the next part of Hatch’s “kitchen sink” piece. He blames the “toxic presidential election” for Republican irresponsibility on this nomination. Anyone paying any attention knows that the current toxicity is almost entirely on his party’s side. Hillary Clinton and Bernie Sanders have mostly conducted their primary contest on a high, substantive level. Hatch calls this the “nastiest election year in recent memory.” He neglects to mention that the nastiness is almost entirely on the Republican side. By some inexplicable logic, the fact that the Republican Party is wallowing in the political gutter means that the Democratic president’s nominee for the Supreme Court should not be treated like any other nominee.

Lastly, Hatch notes: “I have witnessed firsthand the deterioration of the confirmation process. Neither party has clean hands on this front.” That is true. It is also true that what Hatch proposes as the responsible course of action is in fact an extraordinary escalation of the politicization of the nomination process far beyond what either party has done in the past. It shows contempt for the 2012 electorate that elected Barack Obama. It shows contempt for the president personally. It shows contempt for American history.

Nothing in Hatch’s piece changes any of that.

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.

Ted Cruz's Phony Supreme Court "Tradition"

[This post originally appeared on History News Network]

“It has been 80 years since a Supreme Court vacancy was nominated and confirmed in an election year. There is a long tradition that you don't do this in an election year."—Senator Ted Cruz 

If he honestly believes it is not legitimate to nominate and confirm a justice in an election year, Ted Cruz must hate the appointment of Chief Justice John Marshall. John Adams nominated him in January 1801, after he lost his re-election bid to Thomas Jefferson in the election of 1800. Adams was a lame duck in the truest sense of the term—he was serving out the remainder of his term after being repudiated by the voters. Yet he did not hesitate to fill the vacancy in the Supreme Court, and Marshall was confirmed by a lame duck Senate.

Perhaps the most striking irony of Cruz’s position (and increasingly the position of the entire Republican Party) is that this absurd debate is taking place over the replacement of Antonin Scalia. If there is one thing Scalia was known for, it is his originalist interpretation of the Constitution: it means what the founding generation said it meant. So is seems appropriate to ask: what did the Founders actually do in such circumstances?

In the final year of his presidency, George Washington had two nominations to the Supreme Court approved by the Senate. It was an election year and he was not running for reelection. It doesn’t get more "original intent" than that. Adams could easily have left the Supreme Court vacancy for Jefferson—who had already been elected, after all, and would take office in a matter of weeks—and didn’t. That seems as clear as it could be. The founders saw no impediment to a president in the final year--or even in the final weeks--of the presidency successfully appointing new justices to the Supreme Court.

What about Cruz's contention about the last 80 years? Even that does not hold up.

The facts are pretty simple. In the last 80 years there has only been one instance in which a president was in a position to nominate a justice in an election year and did not have the nominee confirmed. In 1968, LBJ’s nomination of Abe Fortas to be Chief Justice to succeed Earl Warren (and of Homer Thornberry to take the seat held by Fortas) was blocked in the Senate, but not because of some alleged “tradition.” Certainly there were Senators who wanted the next president to name a new justice. But the opposition to Fortas had everything to do with the specific nominee and specific objections to him (particularly charges of cronyism and inappropriate financial dealings). To the best of my knowledge, no one cited Cruz’s “tradition” to say it was not appropriate for Johnson to nominate someone, or that it would have been inappropriate to confirm anyone.

A second instance took place 28 years earlier. In 1940, FDR nominated Frank Murphy in January of that election year and he was confirmed that same month. There was no “tradition” blocking that election-year appointment. (This also shows that Cruz got the math wrong—this happened 76 years ago, not 80.) [Note: The morning after this post first appeared, Orrin Hatch spoke on NPR and amended the claim to no "term-limited" president had had a nominee confirmed in an election year--evidently an attempt to exempt FDR's confirmed nominee from the "tradition."]

So, there were two instances similar to the current situation in the last 80 years. In one case the nomination was rejected and in the other it wasn’t. To Ted Cruz, this constitutes “a long tradition that you don't do this.”

Ted Cruz’s invention of this alleged "tradition" that we don’t nominate and confirm Supreme Court justices in an election year would be laughable if so many supposedly responsible political leaders were not taking it seriously.

It is absurd on the face of it. If the Republicans in the Senate want to block any nominee Barack Obama sends them, they have the votes to do it. But they should stop hiding behind the obvious fiction that doing so is part of some “tradition.” It would be nothing but the raw, cynical use of their political power. This suggestion that Obama should not even nominate someone (both John Kasich and Marco Rubio said so in Saturday’s debate), or if he does, that the nominee should be rejected out of hand simply because of the timing (as the Senate Majority Leader and many Republican Senators are now saying), is simply silly. 

True conservatives don’t invent traditions. They work to protect existing ones. Our true tradition is that the president nominates and the Senate votes, regardless of when the vacancy occurs. 

The speed with which Cruz jumped to make this claim and with which so many others have fallen in line, speaks to the nihilistic radicalism that has infected today's Republican Party. Any position can be taken if it produces the correct result. Facts can be denied, “traditions” can be invented. The only value taken seriously is “does it work to our advantage?”

This tactic may well work politically. It has already had the effect of framing the debate as “Should Obama nominate someone?” That is truly extraordinary. The actual question should be “Should the Senate confirm Obama’s nominee?” That’s a legitimate debate, but it would put the focus on the nominee and that person’s qualifications. By hiding behind this phony “tradition,” Republicans are trying to avoid having to show that a given nominee should be rejected on the merits. In short, they don’t want to take responsibility for rejecting someone who—in all likelihood—will be eminently qualified for the job. That’s not statesmanship. It’s cowardice.

The Perverse, Anti-democratic Logic of Antonin Scalia

This past week, the Supreme Court heard arguments on the Voting Rights Act. The nearly 50 year old landmark legislation is under challenge by those who claim that its work is effectively done. The challengers argue there is no need for states (and other areas) with a history of discriminatory tactics to be under any special burden to show that proposed changes in voting practices will not be discriminatory.

Some of the "questions" from Justices John Roberts and Antonin Scalia have received a lot of attention: Roberts for falsely claiming that Massachusetts had the worst record of racial disparity in voter registration, and Scalia for despicably calling the continuation of the current provisions of the Voting Rights Act the "perpetuation of a racial entitlement."

Scalai made another less obviously loathesome, but just as disturbing, statement. With stunning arrogance, he claimed that the unanimous vote in the Senate in 2006 to reauthorize the act is precisely why it needs to be ruled unconstutional. Pointing to the widespread support for the law, he said: "Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this." (It never seems to occur to him that we might have a political consensus that we need it.)

Scalia evidently not only believes that he has the ability to read the minds of the Framers of the Constitution, but also believes he can read the minds of today's legislators. Those 98 senators (and by extension the 390 members of the House) who voted for it did so not out of conviction, but because there was no benefit in voting against it: "I don’t think there is anything to be gained by any Senator to vote against continuation of this act."

What a bizarre argument: the Court must step in and rule the law unconstitutional because Congress won't vote against it. The law, it seems, is too popular, and that's why it needs to go.

As I've written before, Scalia does not make a constitutional argument: he decides on a politically preferable outcome and figures out how to achieve that result, with no concern for consistency or principle.

What is particularly sickening about Scalia's approach to this question is that, on a superficial level, it echoes the arguments for Court decisions in civil rights cases like Brown v. Board of Education. Because local and state governments had systematically disenfranchised black voters, the political process in those places had in fact become a "racial entitlement"--for whites. That made it impossible for the political system to produce a just and constitutional outcome because that local political consensus (among whites) effectively prohibited political participation by black members of the community. As long as that was true, there was no "benefit" to legislators to vote to end Jim Crow. It was thus necessary for the Court to step in and rectify that situation by ruling against segregation.

Scalia, in what strikes me as a disgustingly cynical inversion, now argues that our current mechanism for insuring the right to vote is a similar flaw in our system: it creates, Lord help us, a situation in which elected representatives see no advantage in opposing the means of insuring the right to vote. 

That is exactly what it was meant to do. A well-functioning democracy requires that its citizens have equal access to the ballot box. When all members of society have that access, they can protect their own rights through the democratic process. That was the purpose of the Voting Rights Act--and that result is what Scalia finds objectionable.

Yes, Justice Scalia, no senator sees benefit in voting against legislation that protects the most basic right of a citizen in a democracy. But no, it is not a problem. It is a solution.

That Scalia equates the evidence of the effectiveness of the Voting Rights Act with the evidence of the effectiveness of Jim Crow tells us all we need to know about his approach to this question. That a member of the Court today could espouse such views is evidence of how far we still have to go to achieve the "color-blind" society Scalia would like to pretend we've already achieved.

Scalia Really IS a Political Hack!

Six weeks ago, I wrote a piece on the overtly political (rather than constitutional) nature of Justice Antonin Scalia's questioning in oral arguments on the Arizona immigration law. Today, the Supreme Court handed down its decision, upholding the "papers, please" part of the law but striking down other parts involving state enforcement of federal law.

Scalia, to no one's surprise, dissented on the decision to strike down parts of the Arizona law. But he also went out of his way--this time in a written dissent-- to expose his political views. Referring to President Obama's recent decision to refrain from deporting certain young people brought into the country by their parents, Scalia introduced a completely irrelevant political observation: “The President said at a news conference that the new program is ‘the right thing to do’ in light of Congress’s failure to pass the administration's proposed revision of the Immigration Act.7,” Scalia wrote. “Perhaps it is, though Arizona may not think so.”

The whole point is that it is not Arizona's place to decide on immigration. It is a federal responsibility. Scalia, who seems to be arguing that the states are sovereign entities and can police their own borders, rejects that constitutional principle. That strikes me as a bizarre view, but he is entitled to it.

In his opinion, however, he goes beyond that. Recall that the president's recent decision was not a subject of the case before the Court. To introduce it at all is entirely inappropriate. But even more inappropriate is what Scalia says about it. He questions the sincerity of the administration's explanation of its policy: “The husbanding of scarce enforcement resources can hardly be the justification for this,” he writes. Again, this is beside the point. Whether or not Scalia believes the administration's explanation for the policy is utterly irrelevant to the constitutionality of the Arizona law.

If Scalia would like to resign from the Court and run for office, he can question the motives of the administration all he likes. But to put such blatantly partisan arguments in a dissent shows how irredeemably political he is. He disapproves of the Obama administration's policies, so he wants Arizona to be able to act contrary to those policies.

We have reached a truly absurd point in the relationship between the Court and politics. The Republican Party, which has railed for decades against "activist judges" who "legislate from the bench" has no better representative of its political id than Antonin Scalia, a doctrinaire ideologue who routinely injects his personal political views into his decisions. He brazenly spouts partisan political arguments from the bench, all the while making the ridiculous claim that he is dedicated to the "original intent" of the Framers of the Constitution. But his words betray him. If you want to know what Scalia thinks, you would do better to watch Fox News than read the Constitution.

Justice Scalia is a Political Hack

Ever since Antonin Scalia was appointed to the Supreme Court by Ronald Reagan in 1986, he has been widely lauded as the great thinker on the Court. "Certainly, no one denies his immense legal brilliance and intellectual abilities," one biographical sketch says, reflecting a fairly commonly accepted opinion--even on the left. In the past, I've even accepted it myself.

But I've grown increasingly skeptical of Scalia's "legal brilliance" over the years, and reports I read about the recent health care and immigration cases argued before the Court made me doubt it more than ever. Knowing that isolated quotations can be misleading, however, I decided to read the immigration case oral arguments in their entirety to see Scalia at work.

I was prepared for Scalia to be hostile to the administration's position, so I wasn't surprised when Scalia had little to say while Paul Clement made the case in favor of the Arizona law. What took me aback was how overtly political he was in his questioning. I expected that his hostility to the administration's position would be constitutionally based. I was wrong.

During the oral arguments, Scalia went out of his way to object not to the administration's constitutional argument, but to federal policy on immigration. Note how Scalia frames the issue in this exchange with Clement:

JUSTICE SCALIA: You’ll concede that the – that the State has to accept within its borders all people who have no right to be there, that the Federal Government has no interest in removing?
MR. CLEMENT: No, I don’t accept that, Justice Scalia, but –
JUSTICE SCALIA: That’s all the statute – and you call up the Federal Government, and the Federal — yes, he’s an illegal immigrant, but that’s okay with us.

Recall that the nature of federal enforcement policy is not the issue before the Court. But it seems fairly obvious that it is the object of Scalia's hostility. Scalia refers to people "that the Federal Government has no interest in removing" with the mocking tone that has made him famous. Regardless of what Scalia thinks of federal enforcement policy, it is absolutely irrelevant to the constitutionality of Arizona's law.

Scalia's point here is decidedly not constitutional. It is overtly political. He is effectively saying:  "I don't like how the federal government deals with immigration, so Arizona should be allowed to act differently, because I like their get-tough approach." That's a political argument, not a constitutional one.

Scalia's subsequent questioning showed that his disdain for federal policy blinded him to arguments that the point here is federal jurisdiction over immigration, not specific policy choices.

Later, during the federal government's presentation, Scalia became (not surprisingly) more argumentative. He even turned the administration's case on its head, and argued that states have the right to control their borders. He had hinted at this earlier in an exchange with Clement:

JUSTICE SCALIA: And the State has no power to close its borders to people who have no right to be there?

That, at least, was in the form of a question. But Scalia took it further in his questioning of Solicitor General Donald Verrilli, who presented the federal government's case:

JUSTICE SCALIA: The Constitution recognizes that there is such a thing as State borders and the States can police their borders.

What Scalia seems to be suggesting here is that states are the fundamental sovereign entity, a point which he later made even more explicit:

JUSTICE SCALIA: But if, in fact, somebody who does not belong in this country is in Arizona, Arizona has no power? What does sovereignty mean if it does not include the ability to defend your borders?

Think about that. If Scalia is right, and states have the right to defend their borders, would Arizona also be constitutionally authorized to check the IDs of every person entering the state from other states and detaining anyone whose papers were not in order? It would seem so. After all, mere days earlier Scalia had himself argued, with apparent seriousness, that without a "limiting principle" the federal government's argument for the individual mandate in health care would also allow it to force everyone to buy broccoli.

How can anyone known for his "legal brilliance" could even suggest a state power so absurd and obviously unconstitutional? When he's more concerned with politics and ideology than the Constitution, that's how.

But the worst example of Scalia's political posturing came when Verrilli tried in vain to explain to Scalia the difference between bank robbing and immigration. Scalia, sounding rather proud of himself, presented Verilli with the following analogy:

JUSTICE SCALIA: Anyway, what — what’s wrong about the states enforcing Federal law? There is a Federal law against robbing Federal banks. Can it be made a state crime to rob those banks? I think it is.
GENERAL VERRILLI: I think it could, but I think that’s quite –
JUSTICE SCALIA: But does the Attorney General come in and say, you know, we might really only want to go after the professional bank robbers? If it’s just an amateur bank robber, you know, we’re — we’re going to let it go. And the state’s interfering with our — with our whole scheme here because it’s prosecuting all these bank robbers.

Once again, Scalia's point is blatantly political--he doesn't like the selective enforcement policy of the federal government, it's an absurd "scheme" that no reasonable person could support.

Verrilli tried to explain to Scalia that immigration was different than bank robbing:

GENERAL VERRILLI: In addition, we have very significant issues on the border with Mexico. And in fact, they are the very issues that Arizona is complaining about in that –
JUSTICE SCALIA: So we have to — we have to enforce our laws in a manner that will please Mexico. Is that what you’re saying?
GENERAL VERRILLI: No, Your Honor, but what it does — no, Your Honor, I’m not saying that –
JUSTICE SCALIA: Sounded like what you were saying.
GENERAL VERRILLI: No, but what I am saying is that this points up why the Framers made this power an exclusive national power. It’s because the entire country feels the effects of a decision — conduct by an individual State. And that’s why the power needs to be exercised at the national level and not the State level.

As a matter of historical practice, Verrilli is undeniably right. How foreign nationals are treated in this country is inextricably intertwined with foreign policy. (For example, San Francisco's decision to force Japanese children into segregated schools in 1906 caused Theodore Roosevelt serious diplomatic headaches).  That makes the idea of allowing states to interject themselves into immigration constitutionally problematic to say the least. You would expect a Supreme Court justice to take that issue seriously. Scalia didn't.

Scalia's undisguised contempt for the idea that the United States should care what another nation thinks is remarkable. As repellant as I find the knee-jerk xenophobia that Scalia gave voice to, as a citizen he's entitled to that simple-minded view. He is not, however, entitled to introduce it as relevant to the constitutionality of the Arizona immigration law.

Whether or not the federal government chooses to take the views of the Mexican government into consideration has no bearing whatsoever on its constitutional power to make such judgments. That's a policy decision, one made by the elected representatives of the people. As a justice, Scalia has no business judging the wisdom of federal policy--none. His only concern in this case should be whether making those policy choices--whatever those choices are--is the federal government's exclusive purview.

But Scalia clearly was unconcerned with Verrilli's constitutional argument--the only one that is supposed to matter before the Court. He made a series of political points to support the decision he had unquestionably already reached. A truly brilliant legal scholar would at least make a show of couching his political views in constitutional language. Scalia doesn't even bother anymore. And that makes this alleged intellect of the Court little more than a political hack.