We have come to a point in right-wing obstructionism where the President fulfilling basic constitutional requirements is considered unconstitutional and dictatorial.
In a Medium post yesterday on her official re-election campaign account that included her statement on the current Supreme Court vacancy, Senator Kelly Ayotte (R – NH) explained that President Obama should not nominate a Supreme Court justice to replace Antonin Scalia. Instead, Obama should “let the American people weigh in” by sitting out the process and allowing the next president to select a nominee.
As Brian Beutler, among others, pointed out, the American people already did weigh in on this judicial appointment when they elected President Obama to a second term:
Scalia was 76 years old in November 2012, when voters returned Obama to office. His supporters were motivated in part by a desire to prevent the Court from drifting further rightward (it had just come within a hair’s breadth of voiding the Affordable Care Act, remember) and the hope, however distant, that Obama would turn it to the left.
However, Ayotte’s post goes a bit further than similar arguments made by her fellow Senate Republicans. Check out the bio at the bottom of her post (emphasis added):
Kelly Ayotte is the junior United States Senator from New Hampshire. A former New Hampshire Attorney General, she has consistently taken on the Obama administration’s unconstitutional power grabs and disregard for the will of the American people. Learn more here.
At first glance, one might dismiss this as a generic bio that isn’t necessarily related to the post. The bio on this post, for instance, is the same as the bio on all of my other posts. However, Ayotte’s static bio is below the bio copied above (it reads: “Wife, mother of two, former New Hampshire Attorney General, current U.S. Senator.”). Ayotte — or, presumably, her campaign — has taken the extra step of adding a separate, tailored bio at the bottom of each of her posts. They all mention that she’s a wife, a mother, the former New Hampshire Attorney General and a current US Senator, but they also include language relevant to the topic at hand. Here’s the bio at the bottom of her post from today, which asks her opponent in her upcoming re-election race to join her in signing a clean campaign pledge:
Kelly Ayotte is a wife, mother, former New Hampshire Attorney General, and current U.S. Senator. She has been recognized as one of the most effective members of the Senate because of her focus on results over rhetoric. To learn more, click here.
And here’s one from last week, in a repost of an interview Ayotte did with Refinery29 about motherhood and public service:
All this is to say that the bios at the bottom of these posts don’t just describe Senator Ayotte; they also describe what the post is about. This means that when Ayotte’s statement concerning the current Supreme Court vacancy is followed up with a line about “the Obama administration’s unconstitutional power grabs” in the bio, the post is meant to be read in the context of “the Obama administration’s unconstitutional power grabs.” That list would apparently include President Obama’s audacious decision to nominate a replacement for Justice Scalia.
— Kevin M. Kruse (@KevinMKruse) February 16, 2016
As a refresher, here’s what Article II of the Constitution has to say about that (emphasis added):
[The President] shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.
It would be well within the usual norms of American politics for Ayotte to “carefully consider” whomever President Obama chooses to nominate, and then choose to vote against that person’s nomination. It is well outside the usual norms of American politics to declare before a nominee has even been suggested that they are not fit to serve — that your vote is predetermined.
But it is downright strange to insist that the very act of nominating a jurist to fill a vacancy — as mandated by the Constitution — is in fact unconstitutional. It doesn’t do much other than dilute the term down to “political action I don’t like.”