Originally Published by The Nation on Febuary 23rd, 2016.
The Republicans are implacable in doing anything to stop Obama. That is the unfortunate starting point for any discussion of the Supreme Court opening. They see Armageddon for the 40-year conservative dominance of the Court. It’s not an opening based on the death of one justice; it’s also the death of an era and the coming of a multicultural, multiracial, and multilingual America where the entrenched white power structure is losing command and control. It’s an America where navala ships are named after John Lewis, and that America cannot be abided by one-third of our voters, mostly living in the former Confederacy and the Western Frontier. The mounting violence in the country is due to the unnecessary perception that the whole white race is doomed. (Hey, we are 38 percent of the Obama vote nationwide, so get a life!)
Obama may or may not share my assumption. His strength is his ability to think and act across lines, in symbolism and action. So he may perceive a cracking point this fall if the old-school Republicans see their demise ahead. First, they have denied the legitimacy of Obama’s even offering a nominee. Next, worried about public perception, they may agree to hold a hearing, as advised by a strict construction of the Constitution. But they may play out a phony hearing as a trap for Obama, which will lead to gridlock in yet another branch of government. Finally, they will try framing the November election as a referendum on Obama, who’s beaten them twice. Ultimately, this is leading to trouble in the land.
Recall that the US Homeland Security Agency issued a report in 2009 warning that white racist militias and hate groups were a threat to Barack Obama, using the example of the torrent of hate letters to the White House. And what did the Republicans do? Complained until the report was sanitized.
Many of us know the pattern from long years of repetition. When I was elected to the Legislature in 1982 after a bruising fight, the Republicans soon prepared motions to eliminate my because of trips I’d taken to North Vietnam. Polling showed 80 percent support for me in my district. Even POWs came out supporting me. It didn’t matter. The Republican hate mail led to their defeat in the Assembly vote. They turned their lists into a fund-raising machine. They never quit until their deaths.
I introduced an Assembly resolution condemning right-wing terrorists for killing abortion doctors and trying to blow up clinics, and calling on the attorney general and law enforcement to “take all steps necessary” to protect both lives and clinics. The resolution, SCR 7, in 1995, passed without a single “no” vote. Later, I learned the reason for Republican avoidance. First, we had a far-right conspiracy theorist on the floor in the person of Senator Don Rogers. Second, another Republican senator told me that they couldn’t afford to vote for the resolution because they had so many militia supporters in their Republican coalitions.
However, in everyday work and socializing, Republicans were absolutely civil. Then I thought it was two-faced of them. Looking back, I guess they were trying to play by the formal rules, and some of them always needed my vote, even after trying to expel me. In baseball jargon, it was just business.
The Republican Party is the same today, filled with deeply conservative ideological fanatics steeped in Hayek, Rand supply-side economics, and “originalism.” I learned they really hate being described as “racist” although that’s what allegiance to the original documents means, not to mention exclusion of Native Americans, women, renters, etc.
The debate over replacing Antonin Scalia brings us closer to the brink than we may ever have been. I trust the president to make a carefully vetted and fully responsible choice as his nominee. Based on Joe Biden’s comments this week, the choice will be reasonable and not provocative. Most legal experts will recognize that he’s done his duty. From there it’s all about who wins the November election, and the court drama will be central to the outcome.
I hope progressives will not play the Republicans’ game by competing over how liberal the choice should be. That only feeds into the Republican and mainstream media narratives about two deadlocked “extremes.” The nominee should be a super-qualified public servant with unquestioned character, intelligence, experience, flexibility of mind, and skill in negotiating to accommodate the four remaining conservatives now in shock. If there are hearings at all, the nominee should come out highly regarded by a majority of the public and the legal commentators. Any misstep whatsoever should be avoided absolutely.
We have on our side certain key arguments. First, the president proposes and the Senate consents, not from an initial refusal to consider the Obama nominee. Second, the hearings have to be thorough and substantive, not controlled by a Republican refusal to engage. Third, the American voters are opposed to deeper gridlock in another branch of government. Fourth, the issues framed in the hearings should indicate a common ground rather than endless partisan warfare. Finally, it would strain the country to the maximum to lack a ninth judge for an unprecedented period of one year. The Republicans are talking about one-party rule, a coup against the president for an entire year, contravening our current system—holding it up, frankly—because of their insistence on hegemony.
Anything might change in this baffling year, but greater Democratic unity might result from the epic court fight. Bernie and Hillary have every right to keep their differences alive during the primaries, but it would be counterproductive for their debate to spill over to Obama’s choice and strategy. Of course they will confide their recommendations to the president behind closed doors, but the argument for a united front against the Republicans is only strengthened by the Republican threat and stealth arsenal of dirty tricks.