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Stalemate, taken to the extreme

By Staff | Feb 28, 2016

The dispute over whether President Barack Obama should nominate and the Senate should consider a replacement for the late Supreme Court Justice Antonin Scalia represents yet another new low in this country’s partisan divide and has moved the nation into uncharted territory.

With an election on the horizon, Senate Republicans – led by Sen. Mitch McConnell with the support of New Hampshire Sen. Kelly Ayotte – have said they will not vote on any Obama nomination to the court.

The party line – literally – is that they want the American people to weigh in on the court through the presidential election.

The truth is, they no more want voters to have a say in choosing a justice than they want to move the nation’s capital to Dollywood.

What senators are really saying is: We want a Republican to make the appointment and we’re going to hold our breaths until that happens. (It’s also a virtual certainty, were the roles currently reversed, that Democrats would be the ones turning blue.)

Of course, there’s nothing that says either party has to hold hearings or vote on a nominee, and the blockade that Republicans are staging to prevent an Obama choice from coming to the court gets real scary when you play it out to its logical extreme.

What happens, for instance, if a Republican wins the White House this November, but Democrats win control of the Senate? Or vice versa?

Couldn’t Democrats then turn around and do the same thing to a Republican president that McConnell, Ayotte and Co., are doing to Obama?

But it doesn’t end there. What happens if – before a successor to Scalia can be confirmed and seated – more justices die and suddenly there are two or three vacancies on the bench? Could we possibly get down to just two or three justices by taking the current stalemate to its logical extreme?

It’s not likely, of course, but the Republican senators’ actions beg the question of whether we are within sight of a permanent state of gridlock where court nominees are concerned. The Senate, by design and rule, is an institution in which the few can thwart the will of the many, so it lends itself to inaction.

But the more pressing question is whether the GOP’s decision to put party politics above the constitution will result in permanent damage to the constitution itself.

We don’t know the answer to that, but there is a trusted source that could provide credible guidance on that question and whether to wait until after the election or allow Obama to make an appointment.

It’s where the country frequently turns to resolve our thorniest issues: The court itself.

If you think about it, this would be the perfect time to hear from the court. Heck, they don’t even have to wait to be asked.

First, the justices are ideologically divided 4-4, so any majority opinion on the timing of a nomination would not carry the taint of wholesale partisanship.

Second, because each justice cares about the constitution and the court itself, it is likely that an opinion would carry a weight that is lacking in the present partisan shouting match.

There may be many reasons for the justices not to take the unprecedented step of speaking out on the issue, but there’s at least one reason they should: The country is deadlocked and needs their wisdom.

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