Sometimes, you have to wonder what a critically divided government is actually capable of doing, if anything of substance at all. Certainly, it appears, filling a vacancy chair on the Supreme Court is beyond it.
I'm not even sure Republicans and Democrats could agree on ordering a Supreme pizza at this point.
It's not hard to figure out why, though neither side will say it to your face. They don't have to, of course, you know what's happening already.
President Obama wants to cement his own legacy as a progressive by appointing someone who will weigh decisions in keeping with the mindset the administration has held for eight years.
Interestingly, Obama has described what he would look for in a justice as primarily "empathy."
"I view that quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes," he said in making a nomination to fill the vacant Souter seat earlier in his presidency.
Now that sounds good, doesn't it? We're among the little people the president envisioned, adrift in a complex and tangled legal system. Hopes and struggles? Heck yeah that's us, we've got those! It sounds great, doesn't it, that court decisons would be tilted to making life easier on us, that our nation's highest and most mighty court officials would feel sorry for good folks and make their decisions based on what they understand about our needs.
Except for the fact that it isn't their job to do that. Their job is justice, and that means interpreting the law as it is written, even-handedly, without "identifying with" one side of any question over the other. Our justice system depends on that objectivity.
Not that Obama is after an activist judge, who may do more harm than good, or even a liberal one, necessarily. To be fair, in his three shots at it, Obama does and has shown a desire to add judges who are capable or bridging political divides and compromising when necessary.
Obama argues that allowing the Justice Committee Republicans to stonewall his ability to make the nomination threatens the neutrality of the high court, and even that it brings into question the integrity of the entire U.S. justice system.
Whoa! No, we wouldn't want to do that. Of course, it isn't necessarily true - though Obama knows the justice system well, there is no reason the next president, whoever it may be, couldn't make a good choice as well. Integrity has survived worse than a 10 months stalemate.
And then there are the blockading Republicans, who are trotting out every possible excuse for delaying the choice, from old Joe Biden quotes to billowy recitations from the writings of the founding fathers.
"Our system of government was designed to be of the people, by the people and for the people... to protect the God-given natural rights of each citizen and preserve our liberty," says Senator from Iowa and Justice Committee leader Charles Grassley in an opinion sent to us from his office this week to explain his stance for not even allowing an Obama nominee to come before a hearing. You can almost hear the Battle Hymn of the Republic.
Grassley titles his piece, and bases his argument on, "Giving the People a Choice."
Do you feel like you have the choice? Geez, I don't. We don't vote on potential Supreme Court justices. We're not even informed of them. The president nominates, the Senate turns thumbs up or down. I suppose you could say we have some minor role in that we as voters may once have cast a ballot on the people who ultimately have a say.
Grassley says that ignoring any Obama nominee would give people a chance to expand the presidential discussion to include "the role of the Supreme Court and the direction it will take for an entire generation."
In essence, I guess, the thinking is that if we approve of same-sex marriage, for example, we could choose a presidential candidate who would choose a Supreme Court nominee who would decide any related case in favor of that, and if we back "traditional" marriage, we could do the same.
With due respect to the senators, that kind of thinking is at least as dangerous as the Obama concept of a court based on empathy. It implies that we should assert political pressure to get our own way in Supreme Court decisions, rather than appoint justices to make unbiased decisions, again, based on the Constitution and accepted law.
"Americans have a chance to deliberate the characteristics we want in a Supreme Court justice and which presidential candidate shares our vision for the role of the court," Grassley writes. Perhaps. But do we want our highest court based on the prevailing sentiments of the political moment, to be entirely reversed potentially every four years when a different party seizes control of the White House? Do we want the public redireting the role of justice at its whim?
It's time to speak plain.
Translations. When Obama insists it is his job to nominate the next justice, he means it is his right.
When the Republicans say delay is about "giving people the choice," they mean it is about giving themselves the choice, holding out in hopes a candidate from their party wins the presidency, and a right to shape a more conservative constitutionalist approach to justice.
Our right as citizens is to have the people we elect do their jobs. This is nothing new, and its not corrupt, but it is politics. It is natural as rain for each party to want to strengthen its own voice and footing and convince the public it is doing it for their sake.
Would it be the end of the world if Republicans at least agree to speak with a fairly moderate nominee of Obama's choosing? Or if we're required to wait and end up with a nominee from a new Republican or Democrat in office in 2017? Nah, not really.
But what should concern us is that our leaders seem primarily concerned here about their own power, and not in choosing a fair-minded, objective justice. There seems no possibility of the parties working together to do so. And that is no way to honor the memory of the late Justice Scalia.