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The Supreme Court battle

Lee A. Daniels

It’s no surprise the January 13th death of Supreme Court Justice Antonin Scalia immediately provoked a right-wing frenzy that’s raised the prospect of a constitutional crisis at the highest level of government.

For at stake is whether the Court will continue to be dominated by the 5-to-4 conservative bloc — of which Scalia was the harshest voice — or swing to a 5-to-4 liberal majority.

The prospect of either President Obama, or a President Clinton or Sanders, placing another liberal on the Court has not only undermined the “liberal disaster” rulings widely expected in several significant cases before the Court this term. It would also make highly unlikely a future Supreme Court’s approving more of the conservative movement’s legal agenda on such issues as abortion rights, affirmative action, voting rights and protections for workers.

That’s why Republican Party leaders and wannabe presidential candidates have shown — again — they’re “conservative” only when it suits their purposes. When it doesn’t, they readily throw the Constitution on the closet shelf and support the most outrageous proposals, the most radical schemes.

So, hoping the November elections will produce a Republican president, conservatives from all corners quickly put on their “Party of No” robes and declared President Obama should shirk his constitutional duty and not nominate anyone to fill the Supreme Court seat Justice Scalia had occupied for nearly three decades. Mitch McConnell, the Senate Majority Leader, thundered that if Obama ignored the demand, he would refuse to allow a Senate vote on the nominee.

The conservatives’ ostensible argument was that, this being a presidential election and the last year of President Obama’s tenure, he should leave bringing the Court back to full strength to the next president.

“The American people should have a voice in the selection of their next Supreme Court Justice,” McConnell intoned — thereby ignoring both the Constitution’s directive and the fact that the President and the Senate represent “the people.”

In fact, the GOP tactic isn’t new. Since the 2014 mid-term elections gave them control of the Senate and its committee chairmanships, Republicans have blocked all but one of the President’s nominees for vacancies on the country’s twelve regional federal courts of appeal — evidence that the Republican political establishment’s become not just reactionary in its ideology but also amoral about time-honored traditions of American politics.

“Shut down the government? You bet!” columnist Paul Waldman wrote, describing the GOP’s Obama-era behavior. “Filibuster every bill [Democrats propose] Sure! … Bring America to the brink of defaulting on its debt? Why not! And every incentive Republican members of Congress have pushes them to be more uncompromising, more reckless, and more pure in their opposition to anything and everything any Democrat wants.”

(For a number of reasons, that scenario is far less likely to be put into play by Democrats against a Republican President.)

The GOP’s stalling gambit was so patently absurd a few Senators last week began to twist this way and that under the weight of public outrage and a slew of critical newspaper editorials about exactly what their position on an Obama nomination was.

But there’s little doubt the GOP’s anti-anything-Obama-says-or-does posture will hold as his naming a nominee opens the next stage of what is the climactic Republican effort to damage the Obama presidency. Last week a CBS News poll found that 82 percent of Republican voters oppose Obama’s exercising his constitutional duty and presenting a nominee to the Senate (77 percent of Democrats support it).

That fact and the vicious civil war raging among the party’s various factions means that for the GOP presidential candidates, and every Republican officeholder up for re-election this November and for the GOP as a party, the Supreme Court battle is a fight for survival.

Time will tell whether some critical number of Republican Senators commit to doing their duty as members of America’s national government. As President Obama said last week: “The Constitution is pretty clear about what is supposed to happen now. … Now, this will be a test: one more test, of whether or not norms, rules, basic fair play can function at all in Washington these days.”

Lee A. Daniels’ collection of columns, “Race Forward: Facing America’s Racial Divide in 2014,” is available at www.amazon.com.