The crumbling blockade of the Supreme Court

by | Oct 21, 2016 | Politics/Government

Senate Majority Leader Mitch McConnell and his caucus have kept their word. Normally that is an admirable statement, but not this time.

Shortly after the February passing of Supreme Court Justice Antonin Scalia, McConnell pledged that the Senate would not even consider a replacement nominee put forward by President Barack Obama.  Any nominee.  McConnell made the argument that the next president should fill the vacancy, even though the next president would not be inaugurated for nearly a year.  Again, he has kept his word.

President Obama nominated Judge Merrick Garland in March any way.  Garland’s nomination has become the longest nomination to not receive a hearing in U.S. history.

This matters.  It matters particularly in Indiana, where control of the U.S. Senate could arguably be referred to as ground zero.

I vividly recall the announcement of this political strategy earlier in the year, and wrote about it a couple of times. The concern and prediction I immediately had is starting to become a real possibility. It is a possibility that is not being discussed nearly enough right now.  My concern was with a scenario that the new president and the new senate would continue to be of different parties, and therefore the temptation to not fill the seat at all could be overwhelming.

Senator John McCain, R-Arizona, showed his hand earlier this week when he said: “I promise you that we will be united against any Supreme Court nominee Hillary Clinton, if she were president, would put up.”  McCain’s spokesperson walked that comment back the next day, but the “tell” is still firmly in place and was confirmed by the public agreement of Sen. Mike Lee, R-Utah.

The Senate Republicans have no intention of allowing Hillary Clinton to fill the vacancy if they control the Senate after January.  And I think those of us who are paying close attention to trends, polls, and performances on the campaign trail are fairly confident that our first “Madame President” is growing closer and closer to certainty with each passing day.  On Friday, Sen. Jeff Flake, R-Arizona, said publicly that the Senate should consider acting on President Obama’s nominee during the lame duck session of Congress after the election.  And while Flake has been a notorious opponent of Trump’s candidacy for some time, consenting to Obama’s nominee after the Republican’s lose the presidential election would not actually be keeping McConnell’s word.  It would also be void of the original principle.

So where are Evan Bayh and Todd Young on this issue?

Evan Bayh’s campaign has been predictably quiet on this pressing matter.  For one reason, he has been attacked in television ads for his votes to confirm Justices Sonia Sotomayor and Elena Kagan.  It is important to note that former Sen. Richard Lugar also voted to give senate consent both times as well.  But for another reason, the Senate Democrats are not responsible for this blockade of President Obama’s nominating authority, for obvious partisan reasons.  Further, since the Republican nominee for president is likely going to lose, this kind of over-the-top political obstruction is something entirely owned by the GOP.

Which leads us to the most important question for the Indiana senate campaign: what is Congressman Todd Young’s position on all of this?

Judging by the petition drive to “Stop Obama’s SCOTUS nominee” on his campaign website,, I at least know that he supports McConnell’s first act of obstructionism.  But that’s all I know.  I made a valiant effort to get his campaign to answer my questions on the matter beginning Tuesday of this week. I am surprised and disappointed that they didn’t want to talk to me about it.

As a proud Marine, my expectation of Congressman Young would be that he has an inclination to be a respectful rule follower.  It would not have shocked me if his campaign had told me that they expect the historic and constitutionally based process to be followed immediately after the dust clears from this chaotic campaign season, regardless of the result.  I hope his campaign advisers are telling him that is the right position for him to take on the trail.  I hope that, because the partisan mistake he has already made by supporting McConnell’s terrible idea earlier this year, can be righted to some extent by isolating it.

The Republican presidential nominee refuses to commit to accepting the outcome of the election. The Republican senators refused to fulfill their constitutional duty to “advise and consent” on the supreme court nominee prior to the election.  Congressman Todd Young is on the record supporting both.

I am honestly surprised that more has not been made of this during the campaign this fall.  It is a “tell” about the kind of Senator that Indiana should expect if Young wins.  And I am also surprised that the Marine-turned-congressman, does not have a different view than the current and now desperate senators in charge have on this matter.

But I have been surprised plenty of times this season.  I wish I could say more of those surprises were pleasant ones.


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