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If Fourth-Year Presidents Shouldn't Do Things, How About Sixth-Year Senators?

The Huffington Post The Huffington Post 24/02/2016 Michael McAuliff
ATHENA IMAGE © Tom Williams/CQ Roll Call via Getty Images ATHENA IMAGE

WASHINGTON -- President Barack Obama is in the last year of his second term, Republican senators argue, so he should no longer have a say in something so important as who sits on the Supreme Court. Let's wait for the voters to weigh in this fall, they say.

But Obama isn't the only elected official in the last year of his term who has a key role in choosing the next justice, whose party may or may not hold onto his power post, and who generally makes consequential decisions.

The GOP logic seems to be that voters may have changed their minds about what sorts of leaders they want over the past three years, so rather than let Obama function for his full four-year term, the Senate should stall him. Beyond the Supreme Court vacancy, Republicans have also refused to hold hearings on Obama's budget, and one senator had himself recorded throwing Obama's final proposal to close the Guantanamo Bay, Cuba, prison base into the trash.

If after a mere three years, however, Obama has lost his mandate, what about those other elected officials who haven't gone before the voters in five years?

There are 34 senators serving the final years of their six-year terms. Ten of them are Democrats, and 24 are Republicans, including at least seven facing difficult re-election fights

The logic that says a president shouldn't be allowed to make a consequential appointment in his final year would seem to indicate those "lame duck" senators shouldn't be allowed to cast consequential votes. One might even suggest that argument is stronger against senators, who are one among one hundred, than against the singular president.

"I don't have any idea what that means," said Sen. Lindsey Graham (R-S.C.) when presented with the lame-duck senator scenario. Graham, who is not currently up for re-election, is one of the Senate Judiciary Committee members who signed a letter Tuesday vowing that the committee would not hold hearings on an Obama nominee to the Supreme Court.

Graham had just left a news conference with Sens. Kelly Ayotte (R-N.H.) and John McCain (R-Ariz.) denouncing Obama for proposing to close the Gitmo prison camp.

"It's a ridiculous analogy, but I appreciate it," said Ayotte, who is facing a tough electoral challenge this year from New Hampshire Gov. Maggie Hassan (D).

Democrats weren't so sure that the analogy was ridiculous, although one at least didn't think senators should stop doing their jobs voting or evaluating nominees.

"I'd not thought about that," said Sen. Tim Kaine (D-Va.), who is not up for re-election in 2016. "I haven't thought about that because that would be an extension of their logic. I reject their logic."

Graham insisted that Republicans were taking a principled stand because it was rare in U.S. history for a president to replace a justice in an election year when the Senate is controlled by the opposing party.

"All I can tell you is that in the history of the Republic, we had one [Supreme Court] judge confirmed in an election year where you had ... different parties holding the White House and the Senate," Graham said, presumably referring to the confirmation of Democratic President Grover Cleveland's nominee by a Republican-led Senate in 1888.

There is actually a second example: A Democratic-controlled Senate confirmed Justice Anthony Kennedy in 1988, the last year of President Ronald Reagan's second term. But GOP senators have repeatedly insisted that doesn't count because Kennedy was nominated in late 1987.

Graham also insisted that Democrats would do the same in reversed circumstances.

"You're never going to convince me that they would do anything different than what we've done," he said.

Kaine disagreed, suggesting that the blockade on Obama is much more personal than principled.

"In some ways, this isn't even about the court -- it's about fundamental disrespect for the president. They wouldn't have a hearing on his budget," Kaine said. "That's never happened before."

While he didn't suggest that the GOP should stop working, Kaine added that the Democrats wouldn't stop pushing the Republicans to relent.

"We're not going to drop it," Kaine said. "When the president nominates an individual ... it's going to be somebody highly qualified. There will be a real person on the table -- maybe some person who has received in the past a lot of Republican support -- and we will be able to demonstrate to the American public the outrageous nature of the Senate refusing to do one of the parts of its job description."

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