The Abe Fortas Dilemma OR The Lame Duck Test

I always love when a publication has a headline which is disproved within the body of the article. Somewhere between the editor and the writer, the facts seemed to have been misplaced.

Take this New York Magazine article, "No, the Senate’s Supreme Court Blockade Has Never Happened in American History". Some background:

Senate Republicans announced today that they would refuse to consider any candidate nominated by President Obama for the Supreme Court. The Constitution gives the Senate the right to offer advice and consent on Court nominees. The two bodies have frequently quarreled over just how much power each is entitled over a nomination. Sometimes, senators have granted presidents wide latitude. At other times, they have insisted on forcing the president to nominate a jurist with mainstream views. But never before in American history has the Senate simply refused to let the president nominate anybody at all simply because it was an election year.

That first paragraph is pretty straightforward. Never happened. End of story. May as well end the article here.

Except for this little tidbit later in the same article:

Republicans formulated their no-nomination position in real time, literally within moments of Scalia’s death, and hastily backfilled in justifications only afterward. The first defense, offered up on the fly by Ted Cruz and Marco Rubio at the Republican presidential debate that happened to take place that night, relied on “80 years of precedent” of presidents abstaining from nominating anybody to the Court in an election year. This precedent has turned out to be a complete fiction. Presidents have nominated, and Senates have confirmed, numerous justices to the Court, as law professor Amy Howe pointed out. The Senate did reject Abe Fortas’s elevation to chief justice in 1968, but it did so out of opposition to Fortas’s allegedly improper ties to the administration, not out of a principled rejection of President Johnson’s right to alter the Court in an election year. [Bold added by me] 

Oops. So it HAS happened in an election year.

Naturally, the excuse will be, "But that isn't why the Senate is saying they will do it now!" Agreed, but that isn't what the headline says, now is it? Allow me to reiterate: "NEVER HAPPENED IN AMERICAN HISTORY". That is definitive, leaving no room for exceptions of any kind.

Once we get past the biased wording of the headline, we are left with the real truth, which is the reason behind the Senate blockade of President Obama's nominations. Consider:

1. We don't have a nomination. Until Obama actually nominates someone, this entire discussion is moot.

2. What if Obama nominates a conservative?  Does anyone honestly think the Senate won't rush an approval for a conservative judge? That will be the best crow they ever ate!

(hat tip to Meme Generator for the pic)

3. What if Obama nominates another progressive tool for SCOTUS? Considering Obama's two appointments were nothing more than progressive tools on the court (Sotomayor and Kagan), this does seem likely. However, if he does, the Republicans will be sending Obama a fruitcake for Christmas, thanking him for making them look like precognitive geniuses.

In the political calculus, that means Obama's only choices are numbers 1 & 2. However, this is where it gets complicated, because he is a lame duck president. He will take door number 3, because he is more concerned with his legacy. He will pick a progressive tool, and then cry into his post-presidential memoirs about how the evil racist Republicans obstructed him because he was black.

 (hat tip to Watching America for the cartoon)

So remember the duck test: If it looks like a duck, swims like a duck, and quacks like a duck, then it probably is Barack.