If politics is the art of the possible, as Bismarck once said, then The Scrapbook’s corollary is especially germane these days: Politics is the art of getting away with as much hypocrisy as possible. Both parties are prone to this annoying habit, of course; but in the week since the sudden death of Justice Antonin Scalia, the Democrats’ hypocrisy has been especially impressive.
Consider, for example, the notion that Republicans, in a presidential election year, believe that Scalia’s successor ought to be appointed by the winner in November. This is as much a political as a constitutional conviction, reflecting modern practice as well as the importance of the -Supreme Court’s composition. Nothing prevents President Obama from nominating somebody to Scalia’s vacant seat, as he has announced he will do; but the power of “advice and consent” to his choice rests with the Senate, not the White House. This may strike Obama as unfair, but the unfairness derives from the art of the possible: In 1789, the Founders designed a constitutional system based on the separation of powers; in 2014, the voters elected a Republican Senate.
Needless to say, the reaction among Democrats—in politics, in the media, and elsewhere—has been passionate, even violent. President Obama, they declare, has every right to nominate a successor to Antonin Scalia, even in the final months of his presidency; and the Republican Senate has every obligation to confirm his appointment. If Senate Republicans should prolong the process past Election Day, or worse, reject Obama’s appointment, they are (take your pick) racists, obstructionists, setting the stage for a constitutional crisis.
From The Scrapbook’s perspective, this manufactured rage would be amusing if it were not so irritating. For as every schoolboy knows, the authors of the modern scorched-earth policy toward Supreme Court appointments are Senate Democrats, not Republicans. Just to give two examples from recent decades: In 1987, it was the then-chairman of the Judiciary Committee (now vice president) Joseph Biden who delayed Judge Robert Bork’s confirmation hearings for months to allow his left-wing colleagues and partisan camp followers the opportunity to concoct their witches’ brew of personal and professional abuse against Bork. And in 1991, it was not Republicans but Democrats who deliberately converted hearings on the Court’s second African-American nominee (Clarence Thomas) into the spectacle that Thomas correctly characterized as “a high-tech lynching.”
As for the fate of election-year nominees, it is useful to recall that when Chief Justice Earl Warren announced his retirement in early 1968, the Democratic-controlled Senate of the day failed to confirm the successor appointed by the incumbent Democratic president, Lyndon Johnson. In the year before the 1992 presidential election, then-Senate majority leader George Mitchell made good on his vow to block President George H. W. Bush’s judicial nominations. And in the year-and-a-half before Barack Obama’s election, Sen. Charles Schumer was similarly determined to reject the judicial appointments of President George W. Bush.
When reminded last week of this chapter in his career, Schumer dismissed it as an “apples and oranges comparison”—which, strictly speaking, is true: Schumer was obstructing a Republican president then; now he’s dissembling on behalf of a Democratic president. Oranges and apples never looked so hypocritical.
