Martin Dyckman
It’s in our genes here in America that the losers of an election congratulate the winners and we all move on. That’s more than good manners. It’s the survival instinct of any democracy.
Donald Trump‘s contempt for that disgusts Republicans as well as Democrats and independents.
But look closer. There are 54 members of his party who are already denying the outcome of an election — the last one. And, like Trump, they’re threatening to defy the results of the next one.
I’m talking about Senate Majority Leader Mitch McConnell and the 53 sheep in his fold. Although President Obama was re-elected for a four-year term, the Party of No declared it over three years, one month and 25 days after his inauguration.
That’s when Obama nominated Judge Merrick Garland to fill the Supreme Court vacancy, and the Republicans refused even to give him a hearing.
The Republicans, frustrated and embarrassed by the failure of McConnell’s pledge to make Obama a one-term president, now hold that Supreme Court vacancies during a president’s last year are for the next president to fill.
That is unfounded anywhere in the Constitution or Senate rules, and it’s in direct conflict with the most recent precedent. Justice Anthony Kennedy was confirmed in February 1988, the last year of Ronald Reagan‘s term, by a unanimous vote.
Now, the Republican senators are making a threat scarcely less irresponsible than Trump’s. They’re saying they won’t confirm any Hillary Clinton nominee to the Supreme Court.
This is how John McCain put it in an unguarded moment during a talk show interview on behalf of Sen. Pat Toomey, a Republican from Pennsylvania, who’s in well-deserved danger of losing his seat.
“I promise,” McCain said, “that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up. I promise you. This is where we need the majority, and Pat Toomey is probably as articulate and effective on the floor of the Senate as anyone I have encountered.
“This is the strongest argument I can make to return Pat Toomey, so we can make sure there are not three places on the United States Supreme Court that will change this country for decades.”
To put it the other way, it’s the strongest argument for subtracting Marco Rubio in Florida, Richard Burr in North Carolina, Toomey in Pennsylvania and every other Republican incumbent — including, sad to say, McCain himself — from any future Senate majority.
I have always respected McCain for his service and suffering as a prisoner of war, as a senator who often sought bipartisan compromise on campaign reform and other issues, and — until his inexplicable choice of a running mate — as a candidate for president.
But this is too much. He’s saying that even if a majority of the American people elects Hillary Clinton, the Senate owes those voters no respect. That’s power politics at its worst.
It didn’t take McCain, and others, very long to see that they needed to pull the foot from his mouth. He’s now promising to consider any nominee she sends up fairly. But not necessarily to vote for him or her, no matter the qualifications. What they’re really saying is that if she doesn’t send them more Antonin Scalias, they’ll let the court stay short-handed.
“There is talk,” writes Joe Klein in TIME, “of blocking all Supreme Court nominees until the court withers down to a seven-person bench with a conservative majority.”
The Republicans have controlled the Supreme Court since Ronald Reagan, and the country is worse off in many ways for it. This election is indeed a referendum on the court. Since the Republicans are preparing to ignore it, they deserve to forfeit the Senate as well as the presidency.
The Democrats will pick up Senate seats, perhaps enough for a majority, but not enough for the 60 to break a filibuster. So there’s talk of using the so-called nuclear option, a loophole in Senate rules, to eliminate filibusters against Supreme Court nominees. This has already been done with respect to lower-ranking judicial vacancies, although senators can still single-handedly block nominees from their states.
To do that for the Supreme Court will require a Democratic majority or at least 50 seats with Tim Kaine casting the vice president’s tiebreaker.
Since both parties have used — and abused — the filibuster, neither is comfortable about trashing it.
But a less drastic remedy is possible. At the outset of the next term, when a simple majority can change Senate rules, the Democrats could — and should — provide that the Senate would be deemed to have consented to a nomination once 60 or 90 days have passed without an up-or-down vote.
“Power tends to corrupt, and absolute power corrupts absolutely,” wrote the former British Parliamentarian Lord Acton in 1887.
American conservatives are particularly fond of that familiar phrase, but those in the U.S. Senate don’t seem to think that it applies to them. It’s time for the voters to remind them that it does.
___
Martin Dyckman is a retired associate editor of the newspaper now known as the Tampa Bay Times. He lives in suburban Asheville, North Carolina.
