President Barack Obama said it best this week.
When it comes to who gets to appoint Supreme Court justices, the Constitution is pretty freaking clear.
“I’m amused when I hear people who claim to be strict interpreters of the Constitution suddenly reading into it a whole series of provisions that are not there,” Obama said.
But in the blatant declaration that Obama should not even put forward a new Supreme Court nominee to fill the vacancy left by Justice Antonin Scalia’s death, Republicans are continuing to delegitimize a president that they have long sought to undercut. Many observers view the Supreme Court emerging drama in the Senate as the pinnacle of the drawn out, deep-seated and racially tinged effort to block America’s first black president from leaving a lasting legacy on the country that elected him twice.
Obama’s presidency has been marked repeatedly by moments where opponents have sought to define him as “other.” As recently as September 2015, 43 percent of Republican voters still believed Obama was Muslim despite Obama’s strong and consistent public affirmations of his Christian faith. Twenty percent of Americans still thought Obama had been born outside of the United States despite the fact that the president has publicly turned over his birth certificate identifying that he was born in Hawaii.
“Clearly, you have an element in the Republican Party who is very uncomfortable with diversity in this country,” says Cornell Belcher, the president of Brilliant Corners Research & Strategies and a former pollster for both the Democratic National Committee and the Obama campaign.
Some congressional actions against Obama have been blatantly demeaning and disrespectful, from the time Rep. Joe Wilson (R-S.C.) screamed “you lie” in a visceral outburst at Obama as he delivered a health care address before Congress in 2009 or the time Rep. Steve King said in 2008 before Obama was even elected that that if Barack “Hussein” Obama won the White House, terrorists “would be dancing in the streets in greater numbers than they did on Sept. 11.”
Earlier this month, the Senate and House budget committees broke with decades-old tradition and decided not to invite the president’s budget director to testify before their respective committees about the president’s budget, a move that one senior staffer to a Congressional Black Caucus member concluded came “from a dark place.”
The Supreme Court fight has resurfaced uncomfortable and troubling questions about the nature of the opposition to Obama and the willingness of his opponents to defy norms and conventions that previous presidents were accorded.
“Reagan appointed someone to the court in his last year, LBJ did the same thing,” says Michael Eric Dyson,” a scholar and author of The Black Presidency: Barack Obama and the Politics of Race. “Why was it legitimate for those men in an earlier epoch, but not Barack Obama? How can we conclude anything but race?”
In the days since Scalia’s death, Obama’s foes have been notably candid about what is driving their opposition to him naming his third justice and tipping the balance of the court. It has nothing to do with whether the nominee is liberal or moderate, activist or restrained, temperamentally suited to the court, or even meets the basic qualifications associated with Supreme Court nominees. It’s about Obama.
Curt Levey, the executive director of the conservative FreedomWorks Foundation told TPM that ”the very fact that people on our side feel very strongly that there shouldn’t be a hearing before we know the nominee is because it’s not really about the nominee. … Frankly, the real objection here is to Obama.”
Hillary Clinton – in front of an audience in Harlem earlier in the week– very directly confronted the opposition to Obama naming the next justice, arguing that it fit with the pattern of delegitimization that has persisted throughout his presidency.
“Now the Republicans say they’ll reject anyone President Obama nominates, no matter how qualified. Some are even saying he doesn’t have the right to nominate anyone! As if somehow he’s not the real president,” Clinton said. “That’s in keeping with what we’ve heard all along, isn’t it? Many Republicans talk in coded, racial language about takers and losers. They demonize President Obama and encourage the ugliest impulses of the paranoid fringe.”
Observers note that opposition to Obama appointing a new justice is coming from two distinct places, both vested with deep racial undertones. On the one hand, this is part of a pattern to stop Obama as he seeks to leave a mark on the country and our collective history, changing the court majority from conservative to liberal. On the other hand, opposition to stop Obama from appointing a nominee comes from a desire to retain the status quo, the symbol of a white majority that is quickly shrinking in America.
“Why is Scalia so important? Why are they willing to do something no Senate has ever done, which is refuse not to review a constitutionally mandated candidate from the president? It is because of those many court cases where Scalia acted on purpose to protect white privilege,” says Joe Feagin, a sociologist and professor at Texas A & M, who has studied the culture of racism for decades and is the author of more than 60 books. “Scalia has been a leader on the court for moving backwards on civil rights issues.”
Scalia’s leadership on the court represented more than just a fondness for constitutional originalism. Scalia played a major role in gutting the Voting Rights Act. In McCleskey v. Kemp, Scalia voted to uphold a death penalty system that had shown itself to penalize black Americans at greater rates than white Americans. It was Scalia who said in a hearing on affirmative action case Fisher v. University of Texas-Austin last year that “most of the black scientists in this country don’t come from schools like the University of Texas.”
“They come from lesser schools where they do not feel that they’re — that they’re being pushed ahead in — in classes that are too — too fast for them,” Scalia said during oral arguments.
Not every snub and bitter disagreement Congress has with Obama can be traced to an underlying racial animus. Darren Davis, a political science professor at Notre Dame, said he was reticent to categorize the Senate’s opposition to Obama as racist. “Because I think race is already so polarizing,” Davis said, “I think we have to exhaust those other possible explanations before we go racial.”
Be it his signature health care law Republicans are still claiming they will roll back or his executive actions on immigration, which are caught up in a court battle, there is no doubt that Obama has been fought tooth and nail at every turn to carry out an agenda. But legitimately expecting a President to forgo his constitutional duties under Article 2 is raising eyebrows in a way that other snubs have not.
As Robert Draper chronicled in his book “Do Not Ask What Good We Do: Inside the U.S. House of Representatives,” the effort to challenge Obama’s office began immediately. On January 20, 2009, just hours after the president took his oath of office on the steps of the U.S. Capitol, House and Senate Republicans, including current House Speaker Paul Ryan and former House Majority Leader Eric Cantor (R-VA), gathered at the Caucus Room in Washington to brainstorm all of the ways they could make Obama a one-term president. Absent from the meeting was now-Senate Majority Leader Mitch McConnell, but he would say publicly in 2010 that “the single most important thing we want to achieve is for President Obama to be a one-term president.”
“There is no question that there has been a collective effort from the very start to delegitimize the Obama presidency,” Dyson says. “The far right wing has attempted to render it less than any other presidency. This has been layered by repugnant racial animus that seeks to deny not simply an opponent his or her due; it is the attempt to erase their place in history.”