Isn’t it obvious?
As an act of political theater, President Obama should pick Senate Majority Leader Mitch McConnell, R-Ky., to replace Antonin Scalia on the Supreme Court. Then the nation will find out if McConnell’s distaste for the president is so great that he is willing to obstruct his own nomination to punish Obama.
At the moment, McConnell, Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), and the majority of the Senate GOP conference are continuing their strategy of obstructing anything and everyone associated with this president.
By pledging not to hold confirmation hearings for any Obama nominee to the high court, McConnell has reached new depths of disdain for the president. That is saying something. Remember, during the president’s first term, McConnell said his greatest aspiration as leader of the Senate was preventing Obama from winning a second term.
Now McConnell’s view of responsibly governing descends to the unprecedented low of refusing any Obama nominee the courtesy of a simple visit to the Senate for an introductory meeting.
For all of you who have been paying attention for the last seven years, there is little news in the McConnell and Tea Party-effort to obstruct the twice-elected president. What is newsworthy is that the strategy has now reached a nadir that involves a vulgar show of disrespect for the constitution, the presidency and the courts.
White House press secretary Josh Earnest pulled no punches last week when he told reporters “this would be a historic and unprecedented acceleration of politicizing a branch of government [the Supreme Court] that’s supposed to be insulated from politics.” Earnest also noted on Twitter that every Supreme Court nominee since 1875 has received a hearing or a vote.
Obama himself tweeted a petition calling for McConnell to reconsider: “Refusing to even consider the President's Supreme Court nominee is unprecedented. Tell the Senate: #DoYourJob.”
Doing the job of allowing the nation’s courts to function does not seem to be on the GOP agenda.
As Washington Post columnist Catherine Rampell recently reported: “Last year, the Republican-controlled Senate confirmed just 11 federal judges, the fewest in any year since 1960. Only one appeals court judge was confirmed, the lowest number since 1953. As a result, there are 76 vacancies (including Scalia’s) for Article III judgeships, nearly twice as many as there were when Republicans regained Senate control in January 2015.”
A year of 4-4 rulings by the divided Supreme Court will negate the constitutional role of the high court. The court’s docket in the coming year contains high-profile cases on everything from congressional redistricting to lifting the threat of deportation from 5 million undocumented immigrants to the collective bargaining rights of unions. In the absence of a Supreme Court ruling on these cases, the lower court’s rulings will be the law of the land.
That is in direct contravention of the power placed in the high court by the founding fathers.
Republicans like to cite a speech by Vice President Biden, when he was in the Senate, calling for Republicans not to appoint a Supreme Court justice in the last year of a presidency. And when President Obama was in the Senate, he gave support to the idea of a filibuster to stop a high court nominee.
But that GOP charge of hypocrisy falls flat in both cases. In Biden’s 1992 speech, he was not referring to an actual nominee but discussing a “hypothetical vacancy.” And when Senator Obama gave support to a possible filibuster in 2006, the GOP nominee to the high court, Samuel Alito, was not only given hearings but confirmed by the Republican majority in the Senate.
In addition, there was no pattern of persistent obstruction by the Democrats of all federal court nominations, in addition to ambassadorships and other top federal jobs. For example, despite the Republican lament about the slow economic recovery, the Senate’s banking committee has not confirmed a single nominee in this Congress to the Federal Reserve or other top agencies handling the nation’s economic concerns.
McConnell and Grassley’s obstruction of Obama’s judicial nominees for lower courts has already created a crisis in which there aren’t enough judges on the federal bench to hear cases requiring timely adjudication.
While this intransigence may have delighted the House Freedom Caucus, their Senate allies and cheerleaders in the conservative media, it is not a sound strategy if McConnell hopes to preserve the GOP’s Senate majority.
A Pew Research poll from last week found that the majority of Americans, 56 percent, say McConnell’s Senate should “hold hearings and vote on [President] Obama’s nominee.” Just 38 percent agree with McConnell’s "no hearings, no vote" approach.
Those findings track with a Fox News poll that found 62 percent of all Americans want the opening on the court filled by an Obama nominee, whoever that may be – including 61 percent of independents. The same poll found that position was held by just 36 percent of self-described Republicans.
Senate Republicans up for reelection in November include Ohio’s Rob Portman and Pennsylvania’s Pat Toomey.
A PPP poll from last week shows that 58 percent of voters in Ohio and 57 percent in Pennsylvania think that Scalia’s Supreme Court seat “should be filled this year.”
The real political poison for incumbents like Portman and Toomey is how strongly independent voters oppose the hardline McConnell approach. A whopping 70 percent of Ohio independents and 60 percent of Pennsylvania independents say the new justice should be named this year, according to PPP.
Those numbers constitute a harsh verdict on the GOP congressional failure to responsibly govern. The result may be another Democrat in the White House and a return to a Democratic-majority in the Senate.
Juan Williams is a co-host of FNC's "The Five," where he is one of seven rotating Fox personalities.