New threat to constitutional tradition

The furor over whether President Obama should be allowed to replace Supreme Court Justice Antonin Scalia looks like yet another case of today’s partisanship overriding the unwritten understandings that have made government work.

Should Democrat Obama leave the appointment to his successor taking office in 11 months? Should the Senate, controlled by the Republicans, refuse to act on any nomination, forcing the decision into next year?

Donald Trump expressed the view of the GOP candidates when he said the Republican policy should be, “Delay, delay, delay.”

A lot of ink has already been spilt to show that history points toward an early presidential nomination and confirmation. But that’s just the point. In recent years, bitter partisanship has reversed the constitutional practices that have allowed government to function.

Though there are many court confirmations that support the history, one embodies almost all the elements of the current clash.

In October 1956, a month before the presidential election and just as the Supreme Court began its annual session, one justice resigned. The Senate was not in session. GOP President Dwight Eisenhower made an immediate, recess appointment. That meant William Brennan could take his place on the court without confirmation.

The next year, the Democratic-controlled Senate voted on the nomination, allowing Brennan to remain on the Court. He was easily confirmed by a voice vote of the Senate.

Eisenhower was in the closing days of the presidential campaign when he made the recess appointment, far stronger than a nomination, because it allowed Brennan immediately to join the Court. The Democrats, the Senate majority, did not force the president to delay.

A president, having won a national election to a four-year term, was considered to be entitled to select Supreme Court justices who agreed with his political views. Consistent with this understanding, Scalia, a strong conservative later appointed by Republican President Ronald Reagan, had been confirmed by a vote of 98-0, meaning the Democrats also approved.

The current issue results largely from the partisanship affecting how the Constitution functions. It has changed the filibuster and undermined the president’s power of appointment.

The filibuster, historically used rarely for the sole purpose of blocking civil rights legislation, is now used routinely, meaning the Senate acts on bills and appointments only when 60 senators agree.

As a result, a party with 41 senators could prevent any judicial nomination getting to a vote. Republican senators used the filibuster to block Obama’s court appointments. In reaction, the Democrats finally deployed the so-called “nuclear option” and eliminated the 60-vote requirement for federal judges, except for the Supreme Court. The Republicans were furious.

The GOP has stripped presidents of the ability to make appointments to office when the Senate is in recess, as Eisenhower did, by finding ways to making it seem the Senate was in session continuously, even when it is not. Scalia and his court allies approved the move.

The reason for having the president hold off is that his Supreme Court appointee is likely to remain in his or her lifetime job long after Obama has left office. That’s not unusual, but a president in his last year should no longer control the future, opponents say.

If Republicans believe they will capture the presidency, they could want the choice left open for more than year including the approval process, increasing the likelihood of replacing conservative Scalia with another conservative. This plan could backfire if the GOP wins the presidency but loses control of the Senate.

By contrast, Democrats want their president to do the constitutional job for which he was elected, even if that means risking disapproval by the GOP Senate. Either the Republicans accept a reasonable nomination or they might face the political consequences of delay. Win or lose, the Democrats could gain.

Blocking a Scalia successor might happen at the cost of allowing this year some Supreme Court decisions, strongly opposed by conservatives. The conservative wing of the Court is depleted by Scalia’s death, and the result could be some more liberal results on cases relating to immigration, public sector unions, abortion and health care.

The combination of possibly unfavorable decisions, negative voter reaction in this year’s Senate elections and Obama’s firm intention to make a nomination seems to be changing some Republicans’ minds.

Perhaps political reality may block, for the moment at least, the continued dismantling of the understandings that allow constitutional government to function.

The Constitution cannot deal with all the issues that arise in applying it. Without agreement on using historical practices that have worked, long-term deadlock is inevitable.