I noted last night that one of the most telling things about the immediate reaction to Justice Antonin Scalia’s death was that even the deeply mainstream and well-respected “SCOTUSBlog” published an appreciation of Scalia which took it as a given that the Republican Senate majority would refuse to confirm any nomination to replace Scalia. This evening I saw an email from the RNC research department claiming that Sen. Pat Leahy (D-VT) is a ‘hypocrite’ for saying the Senate should fulfill its constitutional duty and hold a vote on President Obama’s nominee to succeed Justice Scalia.
The email contains a snippet of Dana Bash asking Leahy this morning about something called the ‘Thurmond Rule’, a notion which Leahy himself does appear to have referenced before which holds that late in a presidential election year the Senate should only take up so-called “consensus nominees” for lifetime appointments. Even if you take this at face value, the quotes from Leahy in the email itself are revealing since they clearly refer to nominations late in the year.
So for instance in July 2004 Leahy referred to this being the norm “at this point in a presidential election year.” So on July 20th, just ahead of the party conventions. In another quote from Leahy in the RNC oppo email, Leahy gets asked what the ‘Thurmond Rule’ is and refers to it as being something that has been invoked “in a presidential election year, after spring.” Spring being March, April and May. This would mean from June on.
Now, it only makes so much sense – little at all, really – to pretend there’s some sort of ‘debate’ happening here or that it’s one that’s worth having. It’s reminiscent of the ‘debate’ over bogus WMD intelligence in the lead up to the Iraq War. It’s just a power play and the folks playing have the power. Senate Republicans have the power to do it. So they will do it. And that’s pretty much the end of the story.
I will note that in my immediate appreciation and comment on Scalia’s passing I mentioned that such a move might “plausibly be justified for a lame duck President or in the month or two before a presidential election,” which is to say in September or October.
This is not too far off from the summer months Leahy vaguely references in these cherry-picked quotes. But of course, even if you take this ‘rule’ at face value, it refers to consensus nominees, as opposed to controversial ones, the kind that spark confirmation showdowns. The idea being pressed now by Republicans is that President Obama, at the beginning of the fourth year of a four year term, cannot nominate anybody. He has no standing to nominate at all.
I draw attention to this Dana Bash exchange because it highlights the degree to which mainstream journalists simply become playthings in the hands of those who want to break norms and even fairly straightforward constitutional responsibilities, easy marks for fake equivalency arguments that go on to define the mainstream media debate.
In a typically insightful Twitter spree last night, David Frum noted that “McConnell’s precipitate statement [that he would refuse to hold a vote on any Obama appointee] is wrong not only on grounds of appropriateness & timing, but even politics …” As Frum notes, it is entirely unnecessary for McConnell to make this stark pronouncement. He and his Senate caucus could simply decide in advance to judge any nominee beyond the pale, reject them on a party line vote and run out the clock.
Part of me thinks this too. And I agree with David that it is simply wrong. But I think I know why McConnell is right out of the gate with a principle he seemingly has no need to explicitly invoke: to normalize the behavior, to stake out the maximalist position early in order to allow it time to become accepted as a given. And more than this, it makes sense for him to do so while the White House is bound by normative rules of propriety and decency to focus on statements and gestures of mourning rather than political brinksmanship.
As I said, there’s no debate here. It’s just a power-play, a refusal to fulfill a straightforward constitutional duty, which no one, not the President or anyone else, has the power to prevent. Let’s not pretend otherwise.