(Opinion) — We all needed a break from the nonstop coverage of Donald Trump’s hate-filled attempted march to the White House. But did it have to be the untenable arguments almost all Republican senators — including Wyoming’s John Barrasso and Mike Enzi — are making about filling the late Antonin Scalia’s seat on the U.S. Supreme Court? Replacing one ridiculous controversy with another is more than the national psyche should be asked to absorb at one time.

By refusing to even meet with nominee Merrick Garland, much less grant him a hearing or a vote, most GOP senators are making a mockery of a constitutional process just to show they can complete eight years of uninterrupted obstruction of anything President Barack Obama does.

They’ve gone way beyond shameful this time. Any sense of justice in American politics has all but disappeared. But if it did exist these Republican senators up for re-election would be booted out of office for their ceaseless dereliction of duty.

Is the Senate required to rubber-stamp Obama’s nominees? Of course not. But to maintain that the president doesn’t have the right to make an appointment in his final year in office is patently absurd. So is reciting so-called Senate “rules” they’ve made up to argue that Democrats have treated jurists nominated by Republicans the same way. Barrasso is guilty of this; he’s appeared on national TV news shows and issued statements complaining about the nonexistent “Biden rule.” Barrasso noted when Vice President Joe Biden was a U.S. senator in 1992, “He said that once the presidential election is under way, ‘action on a Supreme Court nomination must be put off until after the election campaign is over.'”

Yes, Biden made that argument on the Senate floor when he was discussing then-President George H.W. Bush’s nomination of Samuel Alito to the high court. But no matter how many times or how vehemently Barrasso and other Republicans claim, Biden’s then position has  never been a Senate rule, nor has it guided how to replace a justice.

Opponents conveniently leave out that Biden made his comments in the context of reforming the entire judicial confirmation process, which he correctly said had been unduly politicized during Clarence Thomas’ disturbing Senate Judiciary Committee hearing. In fact, in the same 1992 speech Biden promised to consider a moderate Supreme Court nominee — which is just what Obama gave the Senate last Wednesday when he selected centrist Garland to replace Scalia.

Republican senators claim it’s unprecedented for a president to appoint someone to the Supreme Court during an election year, but that assertion is easily refuted: There have been six such appointments. The news watchdog organization Media Matters reported, “The historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election. “Moreover, the White House noted that since 1875, every nominee has received at least a hearing or a vote.

Garland is well-qualified to become an associate justice, as witnessed by his confirmation as a judge of the United States Court of Appeals for the District of Columbia Circuit in 1997. He also prosecuted two of the most famous terrorist cases in recent history: the Oklahoma City attack by Timothy McVeigh and the trial of “unabomber,” Ted Kaczynski.

Enzi voted against his appellate court appointment, but Garland was praised by many GOP senators. Sen. Orrin Hatch of Utah, who railed against his nomination last week, said in 2010 that Garland would unquestionably be confirmed if he was ever nominated. Only last week Hatch said Obama could pick Garland, whom he called “a fine man,” but he predicted the president would name someone his liberal Democratic base wants. Wrong, or as Trump might say, sad.

After Garland appeared with Obama in the Rose Garden as the nominee, Hatch hypocritically changed his tune immediately. “I remain convinced that the best way for the Senate to do its job is to conduct the confirmation process after this toxic presidential election season is over,” Hatch said. “Doing so is the only way to ensure fairness to the nominee and preserve the integrity of the Supreme Court.”

It sounds like what happened with the concept of what would later become the Affordable Care Act. When the idea was created by the right-wing Heritage Foundation, Republicans embraced it. When the president ran with the idea, however, the GOP derisively called what had been their own plan “Obamacare” and have tried to repeal it ever since.

Before Garland was selected, Enzi released this statement: “The lifetime appointment of a Supreme Court Justice is not a decision to be made lightly. History has shown that a justice’s role in shaping our legal understanding of the Constitution is immensely powerful and should not be underestimated.”

Enzi is right, it certainly is important. So vital, in fact, that it shouldn’t be in a tug-of-war between Senate Republicans and Democrats.

Naturally, Enzi had harsh words for Obama, charging that he’s “ignored the Constitution when it has suited his agenda and he’s expanded executive power at the expense of the legislative branch.”

If the senator wants to talk about a president who expanded executive power, he should look up “Bush, George W.” He had tremendous help from Wyoming’s own Dick Cheney in grabbing power away from the legislative branch. And don’t forget that a friendly, conservative judicial branch gave Bush the keys to the White House in 2000 even though he lost the popular vote.

Barrasso, Enzi and other Republicans say they want to ensure that the confirmation process is fair. If they mean it, they would at least grant Garland a hearing and an up-or-down vote. Their argument that Obama mustn’t poison the process because Trump’s buffoonery has made the GOP presidential nomination process a “toxic environment” is laughable.

“Let the American people consider it as part of deciding who to support in November,” Barrasso said. “Let the new president make this lasting decision without the political influence of the election hanging over it.”

But the American people did consider and decide — it was called the 2012 presidential election. By more than a 5-million vote margin, they gave the responsibility to appoint new Supreme Court justices to Obama for a second, full, four-year term. Imagine how loud the GOP would scream if Obama announced that since he’s a lame duck, he’ll spend the rest of the year playing golf in Hawaii.

One can’t be more of a lame duck than Wyoming Republican Representative Cynthia Lummis, who announced earlier this year that she won’t seek another term. Using Barrasso’s logic, she shouldn’t cast any more votes in 2016 because the people of Wyoming must first be allowed to elect a new representative.

I haven’t heard Barrasso parrot his party’s most ridiculous talking point, which is that as the strongest conservative voice on the high court for 30 years Scalia must be replaced by a like-minded, far-right jurist. But watch for it from Barrasso as he and the rest of the GOP leadership toss out every objection to Garland they can invent.

It probably won’t please his liberal base, but Obama actually made a brilliant nomination that puts Republicans in a no-win situation. If they succeed and block Garland, after the election they will have to consider either a strong progressive named by a new Democratic president or whatever unhinged judge or business associate Trump names. Of course, if the latter happens, we all lose.

The Republicans’ strategy shows just how far they will go to embarrass Obama. They won’t confirm Garland now, but he’d be perfectly acceptable if they could do it during the lame duck session after the election.

The GOP could now approve a moderate justice who might not help overturn Citizens United, tighten gun control laws, or offer increased protections of women’s reproductive rights and voter rights. But Barrasso and his Senate brotherhood would rather make arguments ranging from silly to deceitful than take that more reasoned and productive course of action.

There’s more I could write, but CNN is showing live coverage of Trump’s empty podium, and I have to get back to America’s other rancid reality show.

— Columns are the signed perspective of the author, and do not necessarily reflect the views of WyoFile’s staff, board of directors or its supporters. WyoFile welcomes guest columns and op-ed pieces from all points of view. If you’d like to write a guest column for WyoFile, please contact interim editor Matthew Copeland at matthew@wyofile.com.

Veteran Wyoming journalist Kerry Drake has covered Wyoming for more than four decades, previously as a reporter and editor for the Wyoming Tribune-Eagle and Casper Star-Tribune. He lives in Cheyenne and...

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  1. Obama nominated Merrick Garland for one reason and one reason only: Garland has a long track record of advocating deference to regulatory agencies, such as the FCC and EPA, that have been taking sometimes radical action at the behest of the President while Congress is gridlocked. Obama has calculated that his unilateral executive actions are most likely to survive if Garland is on the Court.

    Since Congress really should be making the laws and the President signing and executing them, this is a poor reason to choose a Justice, and he should be voted down on these grounds. but having no vote at all is a bad idea. The Senate should bring Garland up for a vote and then “just say no.”

  2. I guess I am a part of the ‘liberal base’ that is not overly excited about the nomination of Merrick Garland. In the days before the appointments of justices like Scalia, Thomas and Alito, a sound and principled jurist is all I would have asked. And the country would be in a much better place if appointments had not become so political. But we are there now, with justices who seem unable to distinguish between the Constitution and the Republican Party platform. In that reality, we have to make a choice. Do we support a justice without reference to political ‘litmus tests’, or do we try to rebalance the court’s political makeup? I confess that I can see arguments on both sides. And aside from those considerations, I can’t help wondering if there aren’t schools other than Harvard and Yale that produce brilliant legal minds and if there aren’t potential jurists like Sandra Day O’Connor who have seen more of America than the East Coast? The court has a very strange demographic, being either Catholic or Jewish and native to the eastern US, regardless of their political differences. Garland apparently spent part of his life in Chicago, even though he has been east coast bound for many years. The only solution I can see is to start voting out of office these Republicans like Barasso and Enzi who see their roles almost exclusively in representing the Republican party rather than Wyoming, and whose vision of their job in our democracy is limited to opposing all presidential policies. If only we could get Kentucky to do the same. No wonder these geniuses cannot come up with a strategy for dealing with Trump–they’ve frozen all of their energy on stopping Obama and can’t adjust their aim.

  3. Right on! We should never forget that the 3 most common things in the Universe are hydrogen, hypocrisy and stupidity.

  4. Thank you for that, Kerry…

    The following is not all there is to be said on the Constitutional law directing function of filling U.S. Supreme Court seats… but it is clear as to requirements for both the sitting President and the current sitting U.S. Senators. The word “shall” is Constitutionally unavoidable… there are no “alternative” meanings.


    See also “Advice & Consent” link in above.

    Really, if Antonin Scalia were to rise from the dead, he would grab Republicans by their collective red tie and slap them loose of their intellectual hind teeth.

    Lander, Wyo.