When Associate Justice Antonin Scalia passed away, the Senate Republicans, who have majority control, and all the remaining Republican candidates for president at that time did what we’ve come to expect from them at every crisis or significant event: they went straight into panic mode. The U.S. Supreme Court had been under reactionary-conservative control for 44 years and that was about to change! Even before we learned of Scalia’s cause of death, the Fox-Republican-TEA Party announced it would not do its constitutional duty to consider any replacement nominated by President Barack Obama.
On Wednesday, March 16, 2016, Mr. Obama did his duty and nominated Merrick Garland, the chief judge of the U.S. Court of Appeals for the D.C. circuit. Judge Garland is a centrist who is highly respected by conservatives, moderates, and liberals, as well as Republicans, independents, and Democrats. Mr. Obama has ten more months in office, which is much too long to wait for his successor to make an appointment. Mr. Garland should be easily confirmed in short order by a unanimous vote in the Senate, so that he could take his seat on the court on the first Monday in October. The G.O.P. could care less.
Prior to that, on Monday, March 14, 2016, Senate Majority Whip John Cornyn of Texas told reporters than any Obama nominee to replace Scalia “will bear some resemblance to a piñata.” In other words, the majority party plans to put on blindfolds and start swinging at him until he’s bloody and destroyed. Whether, the nominee is well-qualified for the job seems to be totally irrelevant. What’s going on here?
Republican Senate Majority Leader Mitch McConnell of Kentucky professed his party’s primary goal was to make Barack Obama a one-term president. The poor man has never recovered from, nor accepted, the people’s majority vote to re-elect Mr. Obama. Now, Mr. McConnell says we must wait for the people to decide again in November and wait until January for a nominee. He apparently is hoping for someone in his party to be elected, although very few in his party can stomach either Donald Trump or Ted Cruz, the two demagogues who are leading in their presidential race. If a Democrat is elected, will McConnell accept the legitimacy of that person? Doubtful.
Everyone in the Fox-Republican-TEA Party is always posturing about Mr. Obama’s “executive overreach.“ They often are pretending that he uses executive orders too much, even though he rarely uses them and has done so far fewer times than other presidents. He uses them reluctantly and only when it becomes obvious that the Republican Congress will refuse to act or is not capable of doing its job – his executive order on immigration is an obvious example. The majority party doesn’t dare lie about his obligation to appoint a replacement for Scalia as being “executive overreach.” That’s part of the president’s job description in the U.S. Constitution. They only want to prevent him from doing his job.
Presidents are elected for 4-year terms, not 3. The problem, of course, is the 22nd Amendment which limits a president to two full terms or a maximum of 10 years in case he succeeds to the presidency due to the death of the incumbent. It was a Republican proposal intended to prevent another Franklin Roosevelt – a Democrat who was elected 4 times. It was introduced in 1947 and ratified in 1951. Thereafter, every president who gets re-elected becomes a lame-duck president for the next four years, thereby weakening his/her negotiating position with both supporters and opponents.
Under the 22nd Amendment, lame-duck presidencies have rarely been good, but they occasionally worked whenever our two-party system consisted of loyal oppositions. There were threats to our national unity from the Republican right wing during the McCarthy Era, which peaked in 1954, and from the insurgency of Barry Goldwater in the early 1960s, but neither of those occurred during a lame duck presidency. And after each of those times, the Republicans returned to being a loyal opposition.
Sadly, that began to change when the Republicans took control of the Senate during the Reagan years and began to purge the party of its moderates. Next, Newt Gingrich (Khan) and his Republican horde took over the House of Representatives and the Senate in 1995 and turned the G.O.P. into an exclusively conservative party. Since then, it rapidly moved to being the extremist, reactionary party that is today’s Fox-Republican-TEA Party. They don’t believe in loyal oppositions.
Bill Clinton’s lame-duck term resulted in a ridiculous impeachment trial simply because Republican right-wingers were determined to do it for whatever excuse they could find. Mr. Clinton, like President Obama, had to deal with a malicious Congress for 6 of his 8 years in office. When Mr. Obama was re-elected in 2012, the Republicans decided to just run out the clock: continue their first-term policy of obstruct and sabotage and don’t let him get anything done for the next four years – and that includes Supreme Court appointments. That’s why Mr. Obama finally resorted to executive orders and executive agreements, no matter how much he clearly hates to use them.
Whenever I hear or read about lame-duck presidencies, I always think about Sleeping Duck Rock in the Canyon De Chelly National Monument in Arizona. Years ago I took a horseback ride with a Navajo guide and came upon a fascinating, lengthy rock on the floor of the canyon. My guide pointed it out and laughed, saying, “It looks like a dead duck to me.” I agreed. And that is precisely how congressional Republicans viewed Mr. Obama’s re-election. Just as the voters were wrong in 2008, so were they wrong in 2012 – this man is not our president. He might as well be a dead duck.
The last lame-duck president to appoint a Supreme Court justice in his final year of office was Ronald Reagan, who appointed Anthony Kennedy in 1988. The Democrats controlled the Senate that year and the vote to confirm him was 97-0. Is there any chance the current Republicans will equally rise to the occasion and confirm Judge Garland? I see no indication that they will change their 7-year strategy of obstruct and sabotage, but I hope I’m wrong.
By David Offutt
A version of this essay was published March 20, 2016, in the El Dorado News-Times as a letter to the editor.