The New, Civil,Conciliatory President Obama is Still the Old Petulant President Obama

Once upon a time, 1968 to be precise, Richard Nixon campaigned as the “New Nixon,” a statesman of maturity and judgment – no longer the red-baiting, confrontational Old Nixon. Of course, Nixon was Nixon. He couldn’t help himself. I remember during my 18 years in Massachusetts that Governor Dukakis presented himself as the New Dukakis. The hyper arrogant tax and spend nerd was defeated for reelection as Governor of Massachusetts in 1978. The compassionate New Dukakis, the man of the people, ran four years later and won and won again, as he financially ran Massachusetts into the ground, having temporarily glowed with the Mass Miracle, dependent on mini computers on Route 128. The new Dukakis was the old tax and spend Dukakis. He couldn’t change. And now we have the new civil President Obama, seeking peace and civility in politics. He gave a talk in Springfield, Illinois before the Illinois Legislature two weeks ago. He complained of the “poisonous political climate” threatening America today. He was apologetic for his failure to “reduce the polarization and meanness in our politics.” He wants a “modicum of civility” between the parties. The old Obama routinely excoriated Republicans, Fox News, Rush Limbaugh, doctors, Sean Hannity, bankers, insurance companies, pharmaceutical companies, medical providers, white police officers, and Wall Street. He called Republicans “hostage takers.” Senator Obama had filibustered the appointment of Justice Alito to the Supreme Court. Josh Earnest, the White House Press Secretary, now says the President realizes that was a mistake. The New York Times reported that his staff held a strategy call with liberal advocacy groups last week for an all-out push for a confirmation of his nominee. We could call that a full court press. The New Obama broke precedence by not attending Justice Scalia’s funeral. He had no excuse for not attending. He went golfing instead. He spent less than 2 minutes at Justice Scalia’s memorial service. The reality is that the still petulant President did not like Justice Scalia’s opinions. Senator Chuck Schumer, soon to be the Senate Democratic leader, criticized President Obama’s proposed budget, which would cut the anti terror Urban Area Security Initiative from $600 million to $330 million. New York received $180 million of that funding last year. He called the cuts ill-advised and ill-timed. Josh Earnest, the White House Press Secretary, caustically responded last Wednesday: “At some point, Senator Schumer’s credibility in talking about national security issues, particularly when the facts are as they are when it relates to Homeland Security, have to be affected by the position he’s had on other issues.” Earnest continued: “He was wrong about that position.” Senator Schumer had disagreed with President Obama’s sell out to Iran. The new Obama is still the old Obama The previous four nominees to the Court were confirmed because they did not change the ideological makeup of the Court: conservatives Roberts and Alito for Rehnquist and O’Connor and liberals Sotomayor and Kagan for Souter and Stevens. One of the Obama standard operating practices is to gin up a crisis which demands immediate action. Thus, according to the Obamanistas, we are facing a Constitutional crisis. The pressure will be especially great on Senators Kelly Ayotte (New Hampshire), Ron Johnson (Wisconsin), Mark Kirk (Illinois), Bob Portman (Ohio), and Pat Toomey (Pennsylvania). The Republicans need to understand that if they confirm an Obama nominee to the Supreme Court that their angry base will desert them in November. There is no constitutional crisis with a vacancy on the Supreme Court. The Constitution does not even require a nine Justice Court. The numbers have changed over time from 6 in 1790, to 7 to 9 in 1807, to 10 in 1863, and back down to nine in 1969. Even a 4-4 split on the Court simply means the lower court decision stands. President Obama is absolutely right in that he can nominate a justice to the Supreme Court. No one doubts that constitutional power of the President. He does not though have the constitutional right to force the Senate to confirm, or even consider, one of his appointments. The Senate can affirm, reject, or sit on a nominee. President Obama is also correct in that elections matter. He won the Presidency in 2008 and 2012. The Republicans won the Senate in 2014. Elections matter. Our Founding Fathers created a governor of checks and balances. Divided government is sometimes the best outcome for America. Conservatives are tired of watching “moderate” justices turn squishy and become liberals on the bench. They want no more David Souters. They even know that some conservative justices will also turn squishy and become liberals (Blackmun, Stevens, and partially Kennedy), but liberals usually don’t turn conservative. An Obama appointment will mark an ideological shift in the Court from conservative, respect the Constitution, to the progressive Living Constitution, which means whatever 5 justices want it to mean. The new Obama Supreme Court would reflect the often judicial lunacy of the Ninth Circuit. The defeat of Robert Bork ended the practice of nominating one of the most qualified lawyers or judges to the Supreme Court. Now they became raw political appointments. President Reagan nominated the distinguished, conservative Professor and Judge Robert Bork to the Supreme Court in 1987. The Senate rejected the nomination 58-42 after a vicious, scurrilous campaign. Senator Ted Kennedy quickly initiated the anti-Bork campaign with a widely praised speech on the Senate floor. He said: “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censured at the whim of the government, and the doors of the federal courts would be shut on the millions of citizens …” The hearings went downhill from that point on. A verb entered the English language: “To Bork” a nominee. Justice Thomas was confirmed to the Supreme Court in 1991 in spite of a vicious Borking attack. Then Senator Joe Biden presided over the Thomas hearing and allowed the vicious attacks to proceed. Senator Biden also urged in 1992 President George H. W. Bush to not name a replacement justice in the election year. He added that the Democratic Senate would seriously consider not scheduling appointment hearings on a nominee until after the election. Senator Chuck Schumer in a 2007 speech at the American Constitution Society, 18 months before the November 2008 election, said “I will recommend to my colleagues that we should not confirm a Supreme Court nominee except in extraordinary circumstances.” Senator Patrick Leahy, formerly the Democratic Chair of the Senate Judiciary Committee said in 2004 “It is a well established practice that in Presidential election years, there comes a point when judicial confirmation hearings are not continued without agreement.” What goes around comes around. The last Supreme Court nominee confirmed in a Presidential election year was Justice Benjamin Cardozo in 1928. Vice President Biden and Senators Leahy and Schumer are now calling for confirmation of President Obama’s nominee. My biggest fear is that the Republicans will hold hearing, vote to break the filibuster, and then five Republican Senators will vote with the unified Democrats to confirm the nominee on a 51-49 vote, or even 50-50 with Vice President Biden breaking the tie.