Musings of Captain Justice a/k/a Gil Jones

Should the Senate give Obama’s SCOTUS nominee a hearing?

US Supreme Court building, front elevation, st...

US Supreme Court building, front elevation, steps and portico. (Photo credit: Wikipedia)

The Republican-led Senate has declared it will not give a hearing to any Obama SCOTUS nominee. They variously cite the “Biden rules” and the “Schumer rules” wherein those senators have in the past declared that Republican presidents in the last year of their term should not do exactly what Obama threatens to do. Should the Senate give Obama‘s SCOTUS nominee a hearing?

Precedent for a lame duck SCOTUS nominee?

There is an interesting article on Teddy Roosevelt’s action in issuing an Executive Order to implement what he hoped would later become a treaty. And no, I don’t routinely read the Daily Kos but the article was pointed out to me by a slightly liberal cousin-in-law — every family should have at least one  🙂  Does this really constitute any sort of precedent? No, not as that term is understood in the law. A unilateral action even by a president when there is no legal precedent by a court does not create precedent.

Do the declarations by Biden and Schumer constitute precedent? Before this year they certainly would have taken that position. Individual statements by Senators don’t create rules, much less binding precedent, but they are politically interesting.

The politics

The question of should the senate give Obama’s SCOTUS nominee a hearing is, of course, purely and simply a political question. A ploy, strategy or tactic of politics and nothing more. Politics really is not a 4-letter word, but the 2016 presidential campaign is certainly working hard to make it that way. The rhetoric, ad hominem attacks, and outright vulgarity has become quite embarrassing.

Here is the best political strategy for the GOP. Do the normal process of considering any nominee. Receive Obama’s nomination and then take the proper amount of time to properly vett the nominee — not a foot-dragging period of time, but make it thorough. Why?

Obama’s smartest move would be to nominate someone whom the Republicans would view as philosophically moderate, someone whom they would see as acceptable. The Senate Republicans would be foolish to turn down such a nominee out of hand. The logical extension of that prospect is to say that they should hold a hearing.

The potential danger of following the process that the GOP has expressed is that an ostensibly qualified and philosophically appropriate nominee might not be what he seems. Chief Justice John Roberts’ whom everyone including Pres. George W. Bush thought to be conservative to moderate, is now viewed by some as an aberration due to his stance on Obamacare as a tax, thus upholding the so-called individual mandate.

On the other hand, should Obama nominate a clearly liberal candidate, or one who was unqualified for any other reason, the Senate would not be wrong to reject him or her. That’s the process and it would seem to be politically safe for the GOP that is rightfully concerned about the potential of an appointment that would tilt the balance of SCOTUS for at least two decades. Just think about the Earl Warren court.

If Obama then was to, notwithstanding that rejection, find a recess appointment window to appoint the same candidate then that person runs the risk of a later re-rejection and most individuals would not submit themselves to that prospect.

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