Scalia’s Death and the Republican Party of Strict Obstructionism

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Chris Wallace Interviews U.S. Supreme Court Justice Antonin Scalia On "FOX News Sunday"
Hmmm, maybe originalism doesn't apply to certain clauses of Article II.Photo: Paul Morigi/2012 Getty Images

Most weeks, New York Magazine writer-at-large Frank Rich speaks with contributor Alex Carp about the biggest stories in politics and culture. This week: the GOP’s attempt to block Obama’s Supreme Court nominee, W. stumps for Jeb!, and Grammy highlights.

Mitch McConnell’s pledge to block any Supreme Court nominee to succeed Antonin Scalia is finding what appears to be near-unanimous support from Senate Republicans, but others speculate that President Obama may use the fight to increase Democratic turnout at the polls this fall. What are the risks of McConnell’s strategy?
Excuse me, but if we are talking about the politics of this brawl, it’s a no-brainer. Obama, a lame duck who will not be on the ballot in November, has nothing to lose by standing on principle and carrying out a president’s duty to submit a nominee to the Senate. The GOP, by contrast, has a lot to lose come Election Day —  including control of the Senate. Though a Times front-page headline this morning reads “Court Path Is Littered With Pitfalls, for Obama and the G.O.P.,” the only potential pitfalls it actually identifies are all for the GOP.

Still, before we get to the politics of the Scalia vacancy, please let’s talk about the bigger picture. The constitutional picture, if we must be grand about it.

As the president pointed out Tuesday, it’s laughable that conservatives who claim to be strict constitutionalists in the Scalia vein want to defy the Constitution by declaring that a president has no right to fill a Supreme Court vacancy during his final year in office. As the Washington Post columnist Catherine Rampell has pointed out, the GOP has taken the position that the first year of a president’s term also does not officially count — that’s the logic by which its presidential field (Donald Trump excepted) keeps insisting that President Bush “kept us safe” despite the fact that 9/11 occurred eight months into his presidency. Then again, the radical right that now rules the GOP, for all its protestations of strict fidelity to the Founding Fathers, has been as hostile to the federal government during the Obama years as the secessionists who embraced the ideology of John C. Calhoun to foment the Civil War. Republicans in Congress have held up countless judicial appointments and Executive-branch appointments, denying American governance the essential tools of personnel in top-tier jobs; they have balked at the routine fiscal task of raising the debt ceiling; they have shut down the government altogether when they couldn’t get their way. Today’s secessionist insurgency has reached such an extreme that both Republican senators from the Dixie stronghold of Alabama, Richard Shelby and Jeff Sessions, have blocked the elevation of Abdul Kallon to the 11th Circuit Court of Appeals (where he would be the first African-American from Alabama to serve) even though they both backed him for his current post as a U.S. District judge.

Which brings us to the politics. Rob Portman of Ohio is one of seven incumbent Republican senators up for reelection this year in states that Obama won in the 2012 election. After Scalia’s death, he tweeted that it was “the best thing for the country” to “trust the American people to weigh in on who should make a lifetime appointment.” He refuses to acknowledge that the American people did weigh in on who should make that appointment when they voted in the last presidential election and the one before that. But like a true nullifier of the Calhoun persuasion, he simply denies the legitimacy of elections, laws, and a president he doesn’t like. Does he not think this will not be noticed by his own constituents when they return to the polls this fall?

What’s more, Obama could inflict more damage on Portman and other vulnerable Senate incumbents — and on the GOP’s national ticket — by nominating a qualified justice who by definition will further highlight the party’s knee-jerk hostility toward immigrants, women, black people, gay individuals, and Hispanics. James Hohmann of the Post cites the potential nominee Monica Márquez, the first Latina and first openly gay justice of the Colorado Supreme Court. Michael Tomasky at the Daily Beast proposes Tino Cuellar, an associate justice in the California Supreme Court who was born in Mexico and became a naturalized citizen before earning degrees at Harvard, Yale Law, and Stanford. Cuellar’s wife, Lucy Koh, is another contender: America’s first female Korean-American district judge, confirmed by a 90-to-0 vote in the Senate when Obama nominated her for the post in 2010 but sure to be rejected now by the same Republican senators who voted for her then.

How exactly does this end well for the GOP in an election year? By refusing to act on the Scalia vacancy, the party will once again brand itself as the party of obstructionism, government dysfunction, and animosity toward the growing majority of Americans who do not fit its predominantly white male demographic.

After Donald Trump’s attacks about his presidency were met with boos from the South Carolina audience at last weekend’s debate, George W. Bush has started campaigning with Jeb in the state. Can W. help his brother’s ailing campaign?
It is not exactly a promising sign that no sooner did W. exit the rally stage in South Carolina than Jeb! let loose with the most bizarre tweet of the political season: a photo of a gun with his name engraved on it, carrying the one-word caption “America.” It was read and ridiculed widely in the Twitter realm as a subliminal suicide note. (“You’re so low energy you couldn’t even pull the trigger lol” was one characteristic response.)

I don’t think anything can save Jeb!’s campaign. But Trump’s attacks on W., for both ignoring intelligence that warned of an imminent Al Qaeda attack in the summer of 2001 and for sending America to war on the pretext of nonexistent weapons of mass destruction in Iraq, is a major turning point in this century’s national-security debate. It has been a given — not just in conservative circles, but in the political culture at large — that no one calling himself a Republican could survive politically if he or she derided Bush’s competence at “keeping us safe” or blasted him for waging a reckless (and failed) war premised on jingoistic propaganda and hyped intelligence. As recently as just a few weeks ago, GOP candidates like Chris Christie and Marco Rubio were trying to outdo each other in boasting of their fealty to Bush-Cheneyism in foreign policy. But now we have the front-runner for the Republican nomination not only violating this sacred bit of conservative political correctness but bellowing it at the top of his lungs, repeatedly. If he pays no price for this breach of party etiquette — indeed, if he wins the primary this Saturday in South Carolina, a conservative state distinguished by its large component of military and retired military voters — the neocon scripture that has defined GOP orthodoxy for 15 years will have finally reached its expiration date. No wonder Bill Kristol and Charles Krauthammer express apoplexy daily about Trump.

By the way, let’s note that George W. Bush said this in arguing for his brother and against Trump in South Carolina: “Strength is not empty rhetoric. It is not bluster. It is not theatrics.” Far from helping Jeb!’s chances, this posturing probably hurt him. All it does is remind you that W. was the one who patented empty rhetoric (“the axis of evil”), bluster (he declared he’d get bin Laden “dead or alive” and succeeded at neither), and theatrics (“Mission Accomplished”) in pursuit of one of the greatest foreign-policy calamities in the history of the Republic.

The Grammys now announce more than 90 percent of their awards at the preshow webcast, ceding the televised ceremony mostly to performances. Is this a better way to do an awards show?
The bar is pretty low, heaven knows. I’m in favor of anything that cuts down on the undying rituals of show-business awards shows, starting with the cutesy-poo special material read by hosts and presenters off teleprompters and the increasingly canned and generic thank-you filibusters from the winners. An awards show that leaves out the awards themselves is an innovative effort to be cherished. But what made this year’s Grammys notable had nothing to do with that.

In a month that soon will bring us the notorious all-white Oscars, the Grammys thrust its audience into the actual culture of the America we are living in now. While hardly ignoring the achievements of white artists (Taylor Swift, after all, was the big winner), the show was in essence defined by two rap performances that could be honestly described as hair-raising, a nearly unheard-of phenomenon these days on any awards show.

One was a live performance, beamed in from the Richard Rodgers Theatre on Broadway, of the opening number of Lin-Manuel Miranda’s musical Hamilton. So much has been written about this show that I’ll stick to a single point: Part of what makes this work so moving, that has won it fans as politically antithetical as the Obamas and the Cheneys, is that in form and content it pumps hope into the American dream that an orphaned immigrant with everything stacked against him (a “Founding Father without a father”) could come to these shores and have a shot at accomplishing great things for both himself and his adopted country.

The other Grammy highlight, Kendrick Lamar’s riveting performance of his songs “The Blacker the Berry” and “Alright,” was an alternately anguished and angry vision of what happens when the American dream is betrayed: a cri de coeur stretching from Africa to Compton and encompassing both the murder of innocent black men like Trayvon Martin (“set us back another 400 years”) and the mass incarceration of so many others. Lamar’s last line implicitly calls for “conversation for the entire nation that is bigger than us.” How one might wish. Both his art and Miranda’s make the conversation in our politics during this fraught presidential year seem tragically small.