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.

BBC 5 Radio Interview on Ted Cruz and his Phony Supreme Court "Tradition"

On February 25, BBC 5 Radio program "Up All Night" with Rhod Sharp interviewed me about the Supreme Court vacancy and the post I wrote about Ted Cruz. The audio file is below.

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.

John Roberts and The Case of Dred Scott v. Madison

Last March, I wrote a post about the Court's consideration of the health care law. My point then was that it was possible for a judicial victory to turn into a political defeat. That could still be the case, if the Court's ruling upholding it motivates the conservative base that is so viscerally opposed to the Affordable Care Act. Already, in an echo of the reaction to the Brown v. Board decision, some in the blogosphere are calling for the impeachment of Chief Justice John Roberts.

My major concern in the original post was that the Court's conservative wing would overreach, much like Roger Taney did in the Dred Scott decision in 1857. The temptation had to be great. The conservative movement is nearly unanimous in its rejection of the act, and even the so-called "moderate" swing vote, Justice Anthony Kennedy, was prepared to throw out the entire law.

It seems, however, that John Roberts was sensitive to that danger. Certainly he could have sided with the four conservative justices in this case. But he didn't. Why?

My good friend Bill Carleton wrote the following in a comment to my original post:

What you say reminds me of a CSPAN documentary I just saw about the workings of the Supreme Court. The current Chief Justice, John Roberts, is heard in a voice over, as the camera pans the portraits of prior Chief Justices, remember the lesson of Taney - don't be THAT man.

It would seem that Roberts thought exactly that. Taney's overtly political decision tarnished the reputation of the Court for years. By avoiding a 5-4 decision in which all 5 votes to overturn the greatest achievement of a Democratic president came from justices appointed by Republican presidents, Roberts may have avoided becoming THAT man.

But as observers on the right and left have noted, he did so in a rather odd way--by effectively agreeing with the dissenters on many of the substantive points, particularly on the matter of the Commerce clause. Some people see this as a stealth attempt by Roberts to set the stage for more significant limitations on the power of Congress in the future.

George Will, for example, argues: "Conservatives won a substantial victory" in the case. Since reformers have used the Commerce clause to expand government power since the New Deal, the argument goes, Roberts has served the larger cause by putting limits on the use of the Commerce clause, which Will, of course, thinks is all to the good.

Pamela S. Karlan, writing in the New York Times, sees the same thing but from the opposite political perspective. Karlan fears that Roberts "laid down a cache of weapons that future courts can use to attack many of the legislative achievements of the New Deal and Great Society."

In short, the argument is that in exchange for allowing this law to stand (barring a political decision by a future president and Congress to repeal it), Roberts has established the ground work for a revolution in constitutional law that might limit significantly the power of Congress under the Commerce clause.

If this is indeed Roberts' game, then instead of pulling a Dred Scott, he decided to pull a Marbury v. Madison. In the latter, Chief Justice John Marshall ruled against the short-term interests of his political party, the Federalists. As Gordon Wood puts it in Empire of Liberty, Marshall's early tenure as Chief Justice showed "his strategy of retrenchment and conciliation and his genius for compromise while at the same time asserting the authority of the Court."

Federalists lost the bitter presidential election of 1800 to Thomas Jefferson, but in the lame-duck session of Congress between the election and Jefferson's inauguration, the now-repudiated Federalist majority passed the Judiciary Act of 1801, which outgoing President John Adams signed into law only weeks before he was to leave office. The law was a rather overt power grab--it created new circuit courts, and Adams immediately appointed Federalist judges to them. It was meant to preserve Federalist power in the judicial branch after the party had lost the Congress and the Presidency. In 1802, Jefferson's Republicans repealed the 1801 act.

In the meantime, one of the last-minute judges appointed by Adams, William Marbury, sued to receive his commission, which the new Republican administration had refused to deliver. Marshall was under a great deal of pressure. Federalists wanted him to rule that the Republican repeal of the 1801 act had been unconstitutional. Republicans warned that a blatantly political ruling by a Federalist judge would reveal the partisan nature of the Supreme Court and require Congressional action to rein it in.

Chief Justice John Marshall

Marshall's decision brilliantly solved his problem. He ruled that Marbury had a right to the commission, and that the Jefferson administration had no right to deny it to him.

So, Jefferson lost, right? Not really. Marshall also ruled that Marbury had based his petition for relief to the Court on a provision of the 1789 Judiciary Act, and that provision, Marshall said, was unconstitutional. Thus the Court had no power to order that Jefferson's Secretary of State, James Madison, deliver the commission.

So, Jefferson won, right? Not really. He thought the idea of judicial review was undemocratic, and said that if the Courts alone had the power to rule on constitutionality of laws, it "would make the judiciary a despotic branch." But since he had "won" the case on those grounds, Jefferson was put in the position of accepting--at least indirectly-- the validity of judicial review.

In the short run, Marshall gave the administration a political victory. In the long run, he established the precedent of judicial review, which is not explicitly stated in the Constitution, but is the greatest power the Court has. But not challenging the Jefferson administration directly, Marshall maintained the reputation of the Court and enhanced its power.

The parallels to what Roberts did last week are obvious. He too resisted the pressure of the political party that nominated him to the Court. He too handed that party a short-run defeat. He too (at least somewhat) rehabilitated the Court's reputation.

Whether or not he has also set the stage for a conservative judicial revolution, such as Will hopes for and Karlan fears, depends entirely on future Courts and future decisions.

But Roberts does seem to have decided--at least for now--that he'd rather be Marshall than Taney. We should all be grateful for that. But for George Will's hopes and Pamela Karlan's fears to be borne out, Roberts would have to some day pick up those judicial "weapons" and use them against the New Deal and Great Society.

For the record, though John Marshall effectively created the Court's power of judicial review, he served on the Court for more than 30 years after Marbury v. Madison and never used it to invalidate another law passed by the United States Congress. In fact, no Court used it for that purpose until 1857, when Roger Taney used it in the Dred Scott decision. Hopefully, John Roberts will remember that, too.