Republicans Say No to “Lame Duck” Supreme Court Appointment–Who Are You Calling Lame?

Within the first hour of the sudden death of Supreme Court Justice Antonin Scalia, Senate Majority Leader Mitch McConnell had decisively emerged from mourning and rejoined the battle against functional democracy. “This vacancy should not be filled until we have a new President,” said McConnell. “Delay, delay, delay,” constitutional expert Donald Trump added, just to clarify. But when it comes to inaction, obstruction, and down-right sabotage, the Republican-controlled Senate already knows the drill.

Republicans say the American people should have a voice in choosing the next Supreme Court Justice.  But the American people have spoken, and now their voice must be honored. They spoke when they denied last-honest-cynic McConnell his number one goal by reelecting Barak Obama. And each state had a voice when it originally voted to be governed by the Constitution, including Article II, which clearly states that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the Supreme Court….”

President Obama—an actual expert on and former professor of constitutional law—knows that. Mitch McConnell, Ted Cruz, Marco Rubio, and all their Senate colleagues know that, too. After all, by their oath of office they swore to support and defend the Constitution.  Past presidents in their final year in office have known that, too, and have a history of performing their constitutional duty without past Senates balking at performing theirs.

What would Justice Scalia think of this abdication of constitutional responsibility by so many of his most ardent admirers? As the expounder of textual originalism, the doctrine that one should look to the text of the law and interpret it as it was intended at the time it was adopted, Justice Scalia would have pointed out that Article II doesn’t contain any exceptions for what Republican leaders are calling a “lame duck” presidency. Even those who typically disagreed with Justice Scalia find the Republican interpretation of the Constitution laugh-out-loud lame.

Which brings us to the definition “lame duck.” A lame duck presidency refers to the period between the election of a president’s successor and time that successor assumes office. We are obviously not in that period.

However, there’s another definition of lame duck: an ineffectual person or thing. This hardly describes a president who in the last months alone has taken decisive action on gun violence, immigration, protecting environmentally sensitive lands, and averting a nuclear confrontation in Iran, all in the face of relentless opposition. That doesn’t exactly sound ineffectual.

But what about the obduracy, stalling, and grandstanding by the Senate’s Republican majority that have rendered this vaunted institution dysfunctional and ineffectual at legislating? By preventing its members from performing their moral and constitutional duty to serve the American people, Republicans have reduced the Senate to political theater, little more than a partisan tool that sets the bar of expectation pathetically low and still fails to clear it. Now that is truly lame. What we are stuck with might be called a “lame duck Senate.”

Gail Gottlieb
Public Policy Committee

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