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Bill Straub: Hard to argue the fact that McConnell’s actions are harming the courts and the nation


WASHINGTON – Sen. Mitch McConnell, who is handling his duties as majority leader of the upper chamber with all the munificence of a barracks guard at Camp 14 in South Pyongan Province, has made it clear that regardless of hell, high water or any other natural disaster Prospero might conjure up, he is not going to sanction a hearing for President Obama’s U.S. Supreme Court nominee, Judge Merrick Garland.

The rationale behind the Louisville’s Republicans obstinacy is considerably thinner than thin air – it’s an election year and lawmakers should wait for the next president to be ensconced, even though that determination is about nine months hence and the eventual seating of a new member will wait until an undetermined date in 2017, despite a high court caseload that requires the presence of all nine justices.

McConnell, as is his wont, is ignoring logic, common sense and the good of the republic, acting like a child holding a ball close to his breast while wailing at others that they can’t play with it because it’s mine, mine, mine. He has appeared on national television and done everything except stick his forefingers in his ears and singsong “lalalalala’’ at the top of his lungs to avoid even the possibility that a wisp of rational thought might enter his closed mind.

Sen. Mitch McConnell

Sen. Mitch McConnell

For weeks now, McConnell has repeated the canard that it’s common practice to ignore a president’s Supreme Court nominee during his or her final year in office, apparently believing that by saying the words over and over again like a mantra it will somehow become true, thus evading the laws of physics.

He also has latched on to something he stupidly calls the “Biden Rule,’’ after Vice President Joe Biden who, as chairman of the Senate Judiciary Committee in 1992, admonished then President George H.W. Bush, then seeking re-election, to refrain from designating a nominee if a seat opened up.

Unfortunately, McConnell failed to acknowledge that Biden’s remarks occurred in June, not February when the current seat opened up, a difference of some four months, that Bush himself was seeking re-election at the time – Obama is term limited – and that no Supreme Court nominee has previously been denied a hearing.

In other words, McConnell’s claim is the bunk.

Oh, what a clever boy is Mitch.

The Supreme Court position in question opened up as a result of the death of Justice Antonin Scalia sometime during the night of Feb. 12/13. And it raises a question for McConnell that, as far as can be determined, has not yet be asked.

In order to better plan for the future, Senator, what would be a convenient date for a sitting jurist on the Supreme Court to die, allowing for his or her replacement? In other words, if you’ll forgive the expression, what is the deadline?

You insist a nominee shouldn’t be considered during a president’s final year in office. So if Scalia had died at 11:58 pm on Dec. 31, 2015, and Obama had snuck in a nominee during the two-minute interval before the onset of the new year, would the nominee have been eligible for your no doubt thoughtful consideration? If Scalia had abandon this mortal coil after midnight on Jan. 1, would the president have automatically been out of luck in getting his nominee in?

So just when is the literal deadline, and does it apply to all Supreme Court nominees or just those proffered by a Democratic president, an African-American one at that? Sen. Ron Johnson, R-WI, not exactly one of the leading lights in the upper chamber but a lawmaker nonetheless, told a radio interviewer that it would be “a different situation’’ if a conservative president were making the choice. True?

McConnell has gone down the rabbit hole on this one and, as usual, the nation will pay the price for his obstructionism. He insists that the American people should make the choice, ignoring the proposition that folks rendered that decision when they re-elected Obama by some 5 million votes less than four years ago. Opinion polls consistently maintain that Garland deserves at least a hearing.

But destroying the federal judiciary appears to be the raison d’etre of McConnell’s lackluster legislative career, that along with annihilating the campaign finance system, thus further opening the election process to the highest bidders.

McConnell has been sitting on judicial nominations like a Rhode Island Red on the nest. Thus far during the 114th Congress, which began in January 2015 under Republican control, a paltry 16 judicial nominee have been confirmed by the Senate. Only five have occurred this year during the second session.

As of Wednesday, there are 84 vacancies in the federal judiciary, with 49 nominations forwarded by the Obama administration pending. Thirty-two of those open slots are considered judicial emergencies. There are 17 judicial nominees ready for a confirmation vote by the full Senate. None of them have been scheduled.

Now McConnell’s obstructionism is likely going to block a Kentucky nominee. Obama has recommended that Kentucky Supreme Court Justice Lisabeth Tabor Hughes, raised in Princeton and now residing in Louisville, fill a slot on the U.S. Sixth Circuit Court of Appeals in Cincinnati that has been vacant since August 2013

“It’s not just with the Supreme Court that the majority is not doing their job,” said Sen. Charles Schumer, D-NY, who is in line to replace the retiring Sen. Harry Reid, of Nevada, as Democratic leader during the upcoming 115th Congress. “It’s up and down the line. It’s no surprise, then, that emergency judicial vacancies have tripled since Republicans took the majority in 2015.’’

Now McConnell’s obstructionism is likely going to block a Kentucky nominee. Obama has recommended that Kentucky Supreme Court Justice Lisabeth Tabor Hughes, raised in Princeton and now residing in Louisville, fill a slot on the U.S. Sixth Circuit Court of Appeals in Cincinnati that has been vacant since August 2013. Hughes, Obama said, “has a long and impressive record of service and a history of handing down fair and judicious decisions.’’

McConnell, of course, is having none of it. He complained that Obama failed to notify him about the pending nomination, which has remained vacant for going on three years because the two sides couldn’t make a deal on a potential appointee, with McConnell attempting to force a Democratic president to appoint someone, a Republican, more to his liking, despite Hughes’ obvious qualifications for the post.

A lot of folks would like to dismiss McConnell’s deleterious actions as politics as usual, that he is a genius when it comes to these things and his maneuverings free of any principle should just be accepted and move on. Nothing to see here. The Supreme Court has always been subject to politics.

But the argument fails to wrestle with the fact that McConnell’s actions are harming the courts specifically and the nation generally. Turning one’s back on his oafish behavior is tantamount to approval.

McConnell would be a laughingstock if one of the three branches of the federal government weren’t approaching crisis levels. For the time being, he’ll just have to settle for playing the fool.

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Washington correspondent Bill Straub served 11 years as the Frankfort Bureau chief for The Kentucky Post. He also is the former White House/political correspondent for Scripps Howard News Service. He currently resides in Silver Spring, Maryland, and writes frequently about the federal government and politics. Email him at williamgstraub@gmail.com.


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