Duty to uphold the Constitution

A few weeks have transpired since Justice Antonin Scalia died and the uproar over the nomination of a justice to replace him on the Supreme Court of the United States began. I observed the uproar for about a week and it seemed like Senate Republicans didn’t want President Barack Obama to nominate a replacement for no reason other than just because it was Scalia who died. I have observed for another month since then and have seen Senators’ justifications for not allowing a hearing and a vote on Obama’s nominee Judge Merrick Garland become more nuanced and less focused on Scalia.

It’s ironic and hypocritical that Republicans are not the only Senators who have made the claim that a president should not exercise their duty to appoint a Supreme Court justice. The oft cited “Biden rule” (which is not actually a rule) refers to Vice President Joe Biden saying (when he was a Senator):

It is my view that if a Supreme Court Justice resigns tomorrow, or within the next several weeks, or resigns at the end of the summer, President [George H. W.] Bush should consider following the practice of a majority of his predecessors and not—and not—name a nominee until after the November election is completed.

In 2005, Senator Harry Reid (D) said regarding judges that, “The duties of the United States senator are set forth in the Constitution of the United States. Nowhere in that document does it say that the Senate has a duty to give presidential nominees a vote.” Of course, both Democrat senators made those statements when there was a Republican president. Reid was as wrong about the issue then as the GOP leaders are now and it’s no surprise that he is now supporting the polar opposite side of the issue since Obama is in office.

As a wonk, I follow politics closely and have seen, read, and heard many different justifications made in the Sunday morning news shows and other media. In large part, I find that the justifications used by Republican senators are factual. But even though the veracity of their grounds is sound, their justifications are still not valid. The Senators never cite the Constitution of the United States to justify the claim that they should not hold hearings and vote on Garland’s nomination but the Constitution is the only governing document that is relevant to the Senate’s duty to uphold it.

So let’s take a look at what the Constitution actually does say on the issue in Article II Section 2: “The President…shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the supreme Court.” The word “shall” makes it the duty of the president to do so and there are no qualifications such as an exception during a president’s last year in office, when the president is nominating a replacement for a justice with an ideology contrary to the president’s, or during a contentious election season. There are no limitations to that duty of any type in the Constitution.

Regarding that clause, many GOP senators are claiming that the Constitution says nothing about how promptly they must give their advice and consent. While that is a true statement, it is not a valid justification for delaying the appointment strictly for political purposes (which none of these senators deny is the reason they want to delay a vote on Garland—in fact, it is their explicit reason). Otherwise, if the Founding Fathers did not specify how long the Senate could delay giving advice and consent with the intent that the Senate use the lack of a deadline to delay advice and consent indefinitely, no justice nominee would ever get appointed when the Senate majority is a different party than the president’s. The Founding Fathers erroneously assumed that the Senate would act like mature adults in carrying out their sworn duty instead of acting like petty schoolchildren.

The word “and” in the beginning of the clause “and by and with the Advice and Consent of the Senate” ties the Senate’s duty to provide advice and consent to the president’s duty to nominate. That means the Senate must do so as judiciously as possible. If there were a war on American soil or some other extraordinary situation, it would be reasonable for the Senate to delay hearings and a vote until after a new president is inaugurated. But it would only be reasonable because of the urgency of making extraordinary circumstances a priority to deal with, not because of the timing of the inauguration.

Both the President and senators vow to uphold the Constitution when they take office. Therefore, Obama has a duty to nominate a justice, which he has done, and the Senate has a duty to give advice and consent on that nomination. Since 1975, the average number of days from nomination to final Senate vote is 67 days. The current congress has passed fewer laws than any congress in modern history, so it’s not as if the Senate has anything else to do. There is no catastrophic situation occurring in the nation at this time. If the Senate fails to hold hearings and vote on the nomination of Garland by the time the GOP and Democrat national conventions are held (barring a major catastrophe in the USA), they are abdicating their duty to uphold the Constitution.

Just because it’s Justice Scalia

I’ve been observing many responses by Republicans and conservatives to the question of why President Obama should not nominate a replacement for Justice Antonin Scalia on the Supreme Court. Perhaps the most common response is an echo of Senate Majority Leader Mitch McConnell who said (while Scalia’s body was still warm), “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.”

But what McConnell failed to recognize is that the American people already had a voice. Shortly after electing Obama in 2008, the president nominated two justices to the Supreme Court. This made it clear to the American people that the president is responsible for filling vacancies on the bench. With that in mind, they proceeded to reelect Obama by a large majority.

The other most common response I have observed is that Obama should not nominate a replacement because the justice who died is Scalia. Then the person follows that response up by lauding Scalia. They not only extol Scalia legally but also politically, intellectually, and personally. They warrant that Scalia’s individual characteristics preclude Obama from nominating his replacement. Presumably this is because Obama is too liberal to replace such an influential conservative.

I read Article II, Section 2 of the Constitution of the United States. It clearly states that the President shall nominate Judges of the Supreme Court. It gives no conditions under which the Senate should not perform its obligation to advise and consent the president on his (or her) nomination. If the Senate does not consent to Obama’s nomination by vote, then that nominee should not become a Supreme Court Justice. But the Senate has a duty to at least vote to give consent on Obama’s nomination because each senator vowed to uphold the Constitution.

The Constitution does not make any exceptions to this duty based on a vacating Supreme Court justice’s individual characteristics. It does not say that conservative justices should only be replaced by conservative presidents and liberal justices by liberal presidents. It says nothing about justices who are constitutional originalists, have wit & good humor, are hunters, or have great legal intellect (in fact, the Constitution does not include any legal education, license, or experience in the qualifications for Supreme Court justice).

Thoroughly read the Constitution. You will find that it does not say that President Obama can fill David Souter’s and John Paul Stevens’ places on the bench but replacing Justice Antonin Scalia alone is exempt. The specific justice leaving the Supreme Court has no relevancy whatsoever to a president’s obligation to nominate his or her successor.

Bullshit hater

I find myself regularly defending President Barack Obama against Republicans and other conservatives. So it comes as no surprise that I’m sometimes accused of being an Obama-lover. I’m told that I drink the Kool-Aid served up by the “liberal media.”

As much as I find myself defending President Obama, what is surprising is that I’ve actually criticized him about many serious issues over the years:

  • I’ve been critical of the Affordable Care Act—better known as Obamacare—since it became law because I see it as a government handout to health insurance companies.
  • I opposed Obama’s approach to recovering the housing market when he presented his homeowner affordability and stability plan shortly after taking office.
  • I consider the fact that the detention center at Guantanamo Bay in Cuba is still in operation to be a failed promise by Obama to close it down as soon as he became president.
  • I believe Obama continues to violate Americans’ right to privacy by authorizing the NSA to gather information about our communiques en masse as they are transmitted over public communications networks.
  • I strongly oppose the assassinations by drone strikes of people, including American citizens, in countries that are not at war against the USA without allowing the person assassinated due process.

The list could go on but that’s not the point of this article. I think there are plenty of legitimate criticisms that can be levied against President Obama and there is also no lack of grounds and reasoning to defend those criticisms. That’s why it disturbs me to see the endless string of criticisms of Obama coming from the Right that have no validity whatsoever.

A recent example was the speech President Obama gave after the mass shooting at Umpqua College last week. Conservatives quickly denounced the president for opportunistically politicizing the incident to press a gun control agenda. I think a reasonable case can be made that the incident should not be used by the president to advance his agenda. But in almost the same breath, conservatives deride the president for not calling for religious tolerance, as he would have if the shooter had been a Muslim, and instead demands gun control—never mind that he publicly stated no one in the USA should ever be targeted by a shooter because of how they worship. But conservatives can’t have both. If the president uses the incident to call for religious tolerance, he’s politicizing it.

The completely groundless criticism we probably hear most frequently from the Right is that the economy is worse off now than it was when President Obama took office. Do these people not remember that the USA’s economy was teetering on the brink of a total collapse at the end of 2008? The American economy lost 2.6-million jobs that year but has gained almost 8-million of them in the intervening years. The unemployment rate was 7.6% then but is now 5.1%. The Dow Jones Industrial Average was around 7,000 when Obama took office but now it’s almost 17,000 and the S&P 500 has increased 157% since then. The Consumer Confidence Index was around 25 when Obama took office and is now over 100. Of course, the most telling statistic is GDP because it’s the basic indicator of a recession. It was contracting before Obama took office and has grown every year since then. By almost every major metric used for the health of the economy, it is in far better shape than it was when George W. Bush handed it off to Obama.

Although it has nothing to do with issues that impact everyday American lives, conservatives often deride President Obama for using the pronouns “I” and “me” excessively in his speeches. The implication is that Obama is narcissistic and self-serving in the presidency. But an objective count paints a very different picture. Just 2.5% of the total words Obama has used in news conferences were first-person singular pronouns—only Herbert Hoover and Franklin D. Roosevelt used them less often since 1929.

Although it’s an older example, conservatives also criticized President Obama for withdrawing from Iraq prematurely. They should have been pointing the finger at George W. Bush instead. It was the Bush administration that established the agreement with Iraq to complete a full withdrawal by the end of 2011 before Obama was elected president.

There will probably be criticisms of President Obama’s patriotism, faith, and birthright citizenship ‘til the day he leaves the Oval Office. Republicans have outright accused him of not loving America and intentionally harming the country. To this day, 43% of Republicans still believe Obama is Muslim. Of course, only Obama himself knows the truth on his patriotism and faith but publicly he has always proclaimed his love for his country and professes to be Christian. He has also released his long-form birth certificate showing he was born in Hawaii (PDF).

The list of invalid or outright false criticisms of President Obama could also go on. They are everywhere in the media and when I see groundless attacks in social media, I find it difficult to resist defending Obama against them. But it’s not because I’m an Obama-lover—it’s because I’m a bullshit hater. Make a legitimate criticism of Barack Obama and I’ll join you in the criticism.

Obama bombs humanitarian aid workers

An airstrike by the US military against a hospital in Kunduz, Afghanistan yesterday killed twelve Doctors Without Borders staff and seven patients, including three children. Thirty-seven others—nineteen staff members and eighteen patients and caretakers—were injured.

A spokesman for the coalition forces in Afghanistan, Col. Brian Tribus, said the bombing was targeting “individuals threatening the force” but that they “may have caused collateral damage to a nearby health facility.” That does not give you a pass, president Obama. You are the commander in chief and these bombings are made with your authorization. According to the Doctors Without Borders operations chief Bart Janssesns, the coalition forces had known well the location of the hospital for five years. Yet officials said they “frantically phoned” NATO and Washington D.C. as the bombing of the hospital continued for “nearly an hour.”

There’s no excuse for US military forces to be dropping any bombs in Afghanistan. You promised us over a year ago, Mr. President, that US combat operations in Afghanistan would end in December 2014. The Taliban does not pose an imminent threat to the USA. We are not at war against Afghanistan. What legitimate justification can you give us for the slaughter of these humanitarian aid workers?