The GOP’s Cafeteria Constitutionalism

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Page one of the original copy of the U.S. Constitution

Page one of the original copy of the U.S. Constitution

Unlike Glenn Beck, I don’t think the U.S. Constitution is sacred scripture like the Bible. We do, after all, get to amend it. But I do think U.S. senators should do what it tells them to do.

Article II, section 2 of the Constitution says that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the supreme Court.” At this point, President Obama has declared his intention to nominate such a judge. The Senate’s Republican majority has indicated that it will not consent to anyone the president nominates. The only advice it gives is that the president disregard his constitutional obligation to make the nomination.

These days, Republican officeholders love pledging to “restore the Constitution.” Why, a “Restore the Constitution Act” was even introduced in Congress last session. How about just not picking and choosing from among its provisions?

By way of encouragement, I would urge Mitch McConnell & Co. to go back and read George Washington’s Farewell Address — you know, the speech where the Father of Our Country declares that “the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all.” It has some choice words about Cafeteria Constitutionalism:

Towards the preservation of your government, and the permanency of your present happy state, it is requisite, not only that you steadily discountenance irregular oppositions to its acknowledged authority, but also that you resist with care the spirit of innovation upon its principles, however specious the pretexts. One method of assault may be to effect, in the forms of the Constitution, alterations which will impair the energy of the system, and thus to undermine what cannot be directly overthrown.

I’d say that the Republican senators are currently committing just the kind of assault on the Constitution Washington was warning against. Their pretext — that somehow the country should leave the nomination to the next president, who they hope will belong to their own party — is specious. They are undermining what they cannot directly overthrow.

Much of the Farewell Address is devoted to a denunciation of faction, as in: “The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism.”

Would Washington have discountenanced the Senate’s factional refusal to discharge its constitutional duty? You can bet on it.

  • samuel johnston

    I have to say I am disappointed in your unfair presentation of the GOP as somehow more paritisan that their opponents. From Andrew Jackson’s “Mr. Marshall (the sitting Supreme Court Chief Justice) has made his decision, now let him enforce it” to FDR’s infamous attempts to pack the court by appointing extra judges to “help” the aged members, both parties are guilty as charged of being cafeteria constitutionalists.

  • I don’t believe I presented the GOP as more partisan than their opponents. All I implied was that they claim to be more devoted to the Constitution. The way conservative Catholics claim to be more devoted to the magisterium of their church.

  • samuel johnston

    Perhaps you should revise the headline, “The GOP’s Cafeteria Constitutionalism”.

  • DougH

    The Constitution grant the president the authority to nominate Supreme Court justices. It likewise grants the Senate the right to consent to those nominations — or to refuse to give its consent, for whatever reason it chooses. The second is as constitutional as the first.

    Nor is this exactly unprecedented, the last time a president nominated a Supreme Court justice during a presidential election year that was confirmed by a Senate controlled by the opposing party was in 1880. Lyndon Johnson tried, but failed.

  • The Constitution says nothing about granting the Senate the right to refuse to give its consent for whatever reason it chooses. What it says is that the President shall nominate and, with the advice and consent of the Senate, shall appoint. The Senate Republicans are now refusing to consider any nominee the President sends up. I consider this an abrogation of a constitutional obligation. I think Washington would also have considered it as such.

  • samuel johnston

    It occurs to me why the Republicans are so out front on this, rather than waiting.
    The President may well wish to use this opportunity to deliberately pick a monority candidate (like the attroney general) who is objectively qualified, but politically unlikely to be confirmed, simply to be able to court (pun intended) the minority vote, portraying the Republicans as raciests. It ain’t bean bag, you know!

  • MarkE

    I don’t know that that would have happened had McConnell not “jumped the gun,” but it could likely be the recourse left to the President now.

  • Glenn Harrell

    This is also very much like the Muslims calling Christians, “People of the Book” Yes they are. But rarely when it causes discomfort or restriction, and always when it speaks kindly of them or offers a sugar stick.

    Where to go then? Back to the law and letter of our forefathers or forward to the overtly compassionate, transposable document, formerly called the Constitution?

    Back to the bible of holy history, saying what it says as truth for all of man-kind in every generation, or as a rubber collection of pick-and-choose nuggets that taste good depending on the chi of the moment and the ambiance in the room?

    The unmovable Qur’an or the abridged and abrogated one?

    The answer to Constitution loyalty depends on a definition of “We”.
    “We the People” still remains the brilliance and the risk of a democratic adventure. We have hope as long as the constitution is amended by vote of the people, not subjected to the cafeteria of which you speak. All parties concerned.

  • al

    Did GW face a SCOTUS that has become a super legislature filled with unelected judges who are unaccountable to the people? Did we conveniently forget the 16 some past nominations blocked in an election year? O how about Joe Biden’s call in 1992 for no nominations. This is political hardball at its finest. Both sides do it and both claim to be guardians of the Constitution when it suites their purpose. But really, a nomination from a guy who has tossed out the rule of law and has lost at 9-0 at SCOTUS over and over? Go GOP! We don’t need another anti-life, anti-family super delegate to the national legislature

  • Re: “Did we conveniently forget the 16 some past nominations blocked in an election year?”

    And I might ask, did you conveniently forget the nominations and confirmations of SCOTUS justices that took place during election years? See e.g. http://www.scotusblog.com/2016/02/supreme-court-vacancies-in-presidential-election-years/ and http://www.nytimes.com/interactive/2016/02/15/us/supreme-court-nominations-election-year-scalia.html). For that matter, did you conveniently forget Justice John Marshall was appointed by a lame-duck president (John Adams) and confirmed by a lame-duck Senate, in January 1801?

    Yeah, I thought so.

    Look, I get it. GOPers are angry about that insolent Obama. Down with him. Down with everything he does. No matter what it is. I really do get it. Just don’t try to portray your fury against him as though it’s some kind of noble, ancient philosophical thing. It’s not … and we all know it. Time for the GOP to grow up already.

  • DougH

    The Constitution says nothing at all about how the Senate is to go about giving — or withholding — its consent. But the Constitution DOES give the Senate the right to “determine the Rules of its Proceedings,” something the Supreme Court upheld recently when it slapped down the Obama administration with a 9-0 ruling that he couldn’t determine when the Senate was in recess. So if the method chosen by the Senate to withhold its consent for presidential nominees — including outright rejection of any nominees — is consistent with the rules of the Senate, that method is constitutional. And there is nothing in the rules of the Senate REQUIRING it to hold hearings and a vote on any nominee.

  • DougH

    Leaving aside all the Democrats that are on record supporting refusal to bother with a judicial nominee of the other party’s president during a presidential election year, the last time a Supreme Court justice was nominated during a presidential election year by a president not of the party in control of the Senate and had that nominee confirmed was in 1880. The last president to try was Lyndon Johnson in 1968, but the nomination was rejected.

  • Re: “Leaving aside all the Democrats that are on record supporting refusal to bother with a judicial nominee …”

    So, you’re saying, two wrongs make a right? Democrats previously tried to stonewall Republican presidents’ choices, ergo now, Republicans are required to do the same? Gee, that’s funny, I’d always thought that kind of thinking was fallacious: http://www.fallacyfiles.org/twowrong.html

  • DougH

    There was a reason I used the phrase “leaving aside” — it points out the rampant hypocrisy of the Democrats’ current outrage, but doesn’t deal with which opinion is right. Beyond that, I was pointing out the flaw in your “it’s happened lots of times” argument. It hasn’t. In fact, it’s been 136 years since the last time that a president and Senate of different parties nominated and confirmed a Supreme Court nominee during a presidential election year.

  • al

    The author was making the point, WWGWT (What would George Washington Think?) and revealing his inner thoughts for us, which, low and behold, consist of blaming those dastardly republicans. I don’t recall the SCOTUS of his day making 5/4 decisions that resulted in the death of 60 million babies. Nor do i recall any SCOTUS decision during his time that overturned a millennia of understanding about marriage.So if railing against a narcissistic failed constitutional lawyer, who doesn’t have the decency to wait for the American people to decide the future of the court, is immature, count me in.
    As an aside, i think GW would be proud. Democracy is working just as intended, slow and messy, with each side doing it’s best to win. The real problem was the liberal resort to the courts to change what they couldn’t get at the ballot box. Rather immature in my book.

  • Re: “… it points out the rampant hypocrisy of the Democrats’ current outrage …”

    I don’t care about anyone’s “outrage.” People are, AFAIC, far too quick to be “outraged.” People’s “outrage” is irrelevant.

    Re: “… making 5/4 decisions that resulted in the death of 60 million babies.”

    You’re referring to Roe v Wade, I see. Also irrelevant to this discussion.

    Re: “So if railing against a narcissistic failed constitutional lawyer, who doesn’t have the decency to wait for the American people to decide the future of the court, is immature, count me in.”

    To answer your question: Yes. It’s immature. Very much so. Scalia died. Obama is entitled, if not mandated, to replace him. You don’t have to be happy about it, but your happiness or anger has no bearing on whether or not Obama can or should nominate his replacement. It’s truly childish to demand the country be ruled by one’s emotions.

    Re: “they couldn’t get at the ballot box”

    I believe Obama…

  • Debbo

    I believe the point is – at least My Point is – it’s the Hypocrisy. This election season and throughout Obama’s presidency, Republicans are claiming to be the Real Party of the Constitution. Now that it’s inconvenient, they are ignoring their constitutionally mandated obligation. Relativism regarding the past or any other political parties throughout the history of the US of A is irrelevant.

    Hypocrisy has been the stumbling block of the Republicans ever since they began labeling themselves as the party of morals and Christianity. It’s not that they are better or worse than Democrats, Independents, Greens, or anyone else.

    It’s The Hypocrisy! Stupid.

  • DougH

    It would be hypocrisy only if the Republican Senate’s refusal to give its consent the Obama’s nominations was unconstitutional. Since the Constitution gives no rules for how that consent is given or withheld, and since the Constitution gives each house in Congress the authority to write its own rules, and since the Republicans’ refusal is in accordance with the rules of the Senate, therefore the Senate’s refusal to consider Obama’s nominee is constitutional.

  • Debbo

    It takes a lot of nitpicking to get to your conclusion, DougH, to get around Republicans’ hypocrisy problem. I guess if that works with you, you should stick with it. The fact is, that flies in the face of years and years of Senate tradition developed to fulfill the Senate’s constitutional requirement.

  • DougH

    No, it doesn’t. It’s been 136 years since a president has nominated a Supreme Court nominee in a presidential election year and had that nominee confirmed by a Senate controlled by the opposite party. The last president to try was Lyndon Johnson in 1968, and he failed.