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368 pages, Hardcover
First published January 10, 2017
Here’s the illustrative example I find most disheartening: The Constitution imposes a duty on the President to nominate a replacement Supreme Court justice; it also imposes a duty on the Senate to “advise”, and — perhaps — consent to that nomination. The founders saw all three branches as crucial, so the strong implication is that the Senate should be working with the President to find an acceptable compromise.To me, this is seems to be a glaring example of what Washington was warning about.
But that’s not what McConnell and his leadership team did. They simply decided that the new nomination could wait for a year, until a new President was in place. There was no advice, there was no Constitutionally-mandated progress at all. The Senate could have staked out a position so extreme that the President would remain unwilling to compromise, of course. However, that would have made the “advise” visible to the public. The country might have been able to gauge which party was being reasonable, and which was blocking progress.
This is often compared to the filibusters that had prevented the confirmation of prior justices and other appointments. But there were two critical differences: the debate in those cases was quite visible. We can still go back to prior records and see precisely which Senators were taking which positions, and what aspects of the nominations were controversial. (We often examine the record of the defeated nomination of Robert Bork and the successful confirmation of Clarence Thomas, as obvious examples.) But the hidden problem is that while the filibuster is merely a Senate rule, and thus revocable at the Senate’s discretion, what was being shredded here was the Constitution itself.
For partisan gain — faction — McConnell dismissed what the Constitution demanded.