Tuesday, February 16, 2016

hatching a plot

Antonin Scalia's body had not yet dropped to room temperature before the political machine had tossed his body over the side of the boat and started churning out the latest machinations to control the court.

That was a shame. After all, the man was one of the more brilliant members to have ever sat on the court. Most court observers rank his writing skills in the top three of all Supreme Court jurists. And his commitment to the rule of law has left the legal world with a series of tests to help interpret statutes and apply constitutional law.

But Americans are not people tied up with the past. And the political apparatchiks are pushing us off into our future. All attention is now on who will fill the vacancy and when.

Let's start with the obvious.

All of this blather by people like Donald Trump that the president has neither the right nor the authority to nominate his choice to sit on the court is just pure poppycock. Scalia would have cringed to think that anyone could look at the constitution and think the president lacked that power. It is right there in Article II, Section 2: "[H]e shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court."

Of course, Trump is notorious for speaking in negotiating positions, when most politicians actually mean to do what they promise. What he really means is that he thinks the president should let the next occupant of the White House to have the rare honor of nominating a Supreme Court Justice.

And the Senate Republicans are little better. The leadership has already promised to hold up any nominee. Thus, enhancing the political power of the Trump candidacy that the Washington machine has a slipping clutch.

With a bit of fine-tuning, things could have been so much more -- well, subtly French.

The Senate Republican leadership could have bided their time. After all, the president is going to nominate someone. And, just as the president has the right to nominate a candidate, the Senate has a constitutional right to exercise its role of advice and consent.

The nominee would be subject to a confirmation hearing before a skeptical committee. The Senate Democrats came up with a great script in the Clarence Thomas hearings where Ted Kennedy showed thespian shock that a man might make sexual comments to a woman. This year, the hearing could have been long and arduous -- terminating in an obvious partisan vote that would block the nominee in committee.

If the nomination did get to the floor, the vote on the nominee would be a defeat for the president. If the Republicans had simply kept mum, the constitution itself would have provided cover, rather than relying on political truculence. And enhancing the credibility of The Donald.

Yesterday, I read an AP story about the list of potential nominees the president might consider. (The article gave the impression the list might actually exist in the Oval Office.) 

All of the usual suspects were there. Attorney General Loretta Lynch (who I still mistakenly call Loretta Lynn). A list of appellate judges. And, of course, the politicians: California Attorney General Kamala Harris, Senator Amy Klobuchar of Minnesota, and -- this is where I was caught in mid-sentence -- Senator Orrin Hatch of Utah.

Orrin Hatch! True, he is well-qualified for the position. But he is a Republican. A noted conservative. With political views on social issues that are traditional, but certainly not those of President Obama.

Of course, the name is a red herring. But the possibilities sent me off into a hypothetical reverie.

Nominating Hatch would be a brilliant political move. It would not shut up Donald Trump. But it would certainly put the Republican leadership in the Senate in a position where it could not effectively oppose the nomination -- either in committee or in the full Senate.

I suspect Hatch is on the list because he is one of the few Republican senators who are on a speaking basis with the president. However, this president is not likely to be lured into nominating someone with Hatch's political background. He wants to leave a legacy. And Hatch is too much of a risk for this president.

This is not the type of flexibility we have come to expect of Barack Obama. Bill Clinton on the other hand would have jumped at the opportunity. He would be willing to take the risk that Orrin Hatch the senator would not be the same as Orrin Hatch the supreme court justice.

But that is all it is. A reverie.

It is not going to happen. And that is too bad. At least, it would be something far more surprising and interesting than this year's presidential election.

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