John McCain threatens to trigger a constitutional crisis over the U.S. Supreme Court

Seven current Republican senators voted in 1997 to confirm Merrick Garland, a former Justice Department attorney who coordinated the prosecution in the Oklahoma City bombing case and was nominated by President Bill Clinton to the D.C. Circuit Court of Appeals: Sen. Orrin Hatch of Utah, Sen. Pat Roberts of Kansas, Sen. Dan Coats ofIndiana, Sen. Thad Cochran of Mississippi, Sen. Susan Collins of Maine, Sen. James Inhofe of Oklahoma, and Sen. John McCain of Arizona. Garland was confirmed by a 76–23 vote. All of the 23 “no” votes came from Republicans, and all were based “on whether there was even a need for an eleventh seat” on the D.C. Circuit (with a Democratic president in the White House), not Garland’s qualifications.

When President Obama nominated Judge Merrick Garland to fill the vacancy on the U.S. Supreme Court created by the death of Justice Antonin Scalia, Senate Majority Leader Mitch McConnell announced an unprecedented judicial “blockade” to obstruct the president’s nominee: there would be no confirmation hearings for President Obama’s nominee during the remainder of his term. “Give the people a choice in filling this vacancy,” he said. “The Senate will appropriately revisit the matter when it considers the qualifications of the nominee the next president nominates, whoever that may be.”

“This issue is not about any single nominee — it’s about the integrity of the Court,” McCain wrote in a statement. “With less than a year left in a lame-duck presidency and the long-term ideological balance of the Supreme Court at stake, I believe the American people must have a voice in the direction of the Supreme Court by electing a new president.”

McCain added another qualifier: “The last time the American people spoke, they elected a Republican majority to the Senate to act as a ‘check and balance’ on President Obama’s liberal agenda — a responsibility I cannot ignore. We must allow the people to play a role in selecting the next lifetime appointment to the Supreme Court.”

So even if a Democrat is elected president in November, possibly by a large electoral margin, should Republicans hold their majority in the Senate even by the slimmest of margins, McCain would resort to this line that the American people “elected a Republican majority to the Senate to act as a ‘check and balance’ on President Clinton’s liberal agenda” to continue his ideological “blockade” of a Supreme Court nominee, a presidential mandate be damned.

McCain took his position to the next logical extension on Monday. Think Progress reports, John McCain: Republicans will block anyone Clinton names to the Supreme Court:

[I]n a Monday interview with a Philadelphia radio host, Sen. John McCain (R-AZ) admitted that Republicans will continue to block anyone the next president nominates to the Supreme Court — at least if that president is Hillary Clinton.

“The strongest argument I can make” for why Pennsylvania voters should reelect Republican Sen. Pat Toomey, is that a Republican Senate can “ensure that there is not three places on the United States Supreme Court that will change this country for decades.”

After host Dom Giordano pressed McCain on how he can promise that Republicans will block Clinton’s appointees when they did not block President Obama’s appointment of Justice Sonia Sotomayor, McCain noted that a handful of Republicans did support Sotomayor. This time around, however, he says things will be different.

“I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up,” McCain told Giordano. He added that “this is why we need the majority.”

The tactic that McCain is proposing is nothing less than an existential threat to the Supreme Court itself. Unlike elected officials, who wield legitimate power because they were elected by the people, federal judges cannot claim democratic legitimacy. Their legitimacy flows from their obedience to a written text and the knowledge that they were selected in a fair and constitutional process.

McCain, however, is effectively proposing that only Republicans should be allowed to choose Supreme Court justices. And, as McCain notes, two or even three more vacancies could open up on the Court during the next president’s term, as three current justices are quite elderly.

If those justices are replaced through the same legitimate process that every other justice has endured, then the Supreme Court retains the same legitimacy that it enjoyed before Scalia’s seat became vacant. But imagine a world where Scalia’s seat — and two others — remain vacant for five years (or more) because a Republican Senate refuses to confirm anyone named by [a Democratic] president.

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McCain, in other words, is threatening a very dark future if Republicans keep their Senate majority. He is threatening to intentionally trigger a constitutional crisis where a bench stripped of its legitimate authority tempts defiance from elected officials who’ve been empowered by the electorate to govern.

That is a dangerous future because the judiciary, for all of its many flaws, plays an essential role in ensuring that elected officials respect the rule of law and the rights enshrined in the Constitution. But it can only play that role if the Senate does not rob it of its rightful claim to authority.

UPDATE: Hours after McCain’s comments kicked off a firestorm online, his spokesperson walked back his comments in a statement first obtained by Talking Points Memo:

“Senator McCain believes you can only judge people by their record and Hillary Clinton has a clear record of supporting liberal judicial nominees,” communications director Rachael Dean told TPM in a statement. “That being said, Senator McCain will, of course, thoroughly examine the record of any Supreme Court nominee put before the Senate and vote for or against that individual based on their qualifications as he has done throughout his career.”

This statement is from McCain’s spokesman. McCain himself has not publicly walked back his comments, which were consistent with his previous statement in March. This is just CYA from his spokesman, and not to be believed.

The Washington Post editorializes, John McCain surrenders his honor to toxic partisanship — again:

IT IS profoundly depressing to watch Americans of honor and goodwill surrender to toxic partisanship and become part of the problem. Listen, for Exhibit A, to Sen. John McCain (R-Ariz.) on Monday.

“I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up,” Mr. McCain said on a Philadelphia radio show. “I promise you,” he repeated. Before the past year, the notion that presidents deserve a measure of deference in selecting Supreme Court nominees was among the nation’s essential political norms.

Then, Senate Republicans ignored President Obama’s nomination of Merrick Garland, among the best Supreme Court picks of the past half-century, supposedly on the principle that the next president should get to fill the Supreme Court’s open seat. Now Mr. McCain is suggesting that that justification was simply pretext for a partisan blockade that he would like to continue.

Rachael Dean, Mr. McCain’s communications director, attempted to soften the senator’s statement later Monday, writing in an email that Mr. McCain “will, of course, thoroughly examine the record of any Supreme Court nominee put before the Senate and vote for or against that individual based on their qualifications as he has done throughout his career.”

But Ms. Dean also wrote that “you can only judge people by their record and Hillary Clinton has a clear record of supporting liberal judicial nominees,” implying once again that no Clinton nominee would be acceptable. Ms. Dean did not respond when we asked what Mr. McCain would do if Ms. Clinton renominated Mr. Garland.

Even if Ms. Clinton tapped someone considered more liberal than Mr. Garland, that nominee would deserve a fair hearing. Senators should accept presidential nominees unless they are either truly unqualified or true ideological extremists. The functioning of government depends on speedy and open-minded judicial confirmations. In the past, Mr. McCain, who ran for president in 2008 and recognizes the importance of a sound appointment process, was a voice of restraint on these matters. Now he recklessly encourages Republican voters to expect that GOP senators will refuse any Democratic Supreme Court nominee.

This is a dangerous road. If the Republicans keep the Senate majority next month, acting on such an expectation will establish the precedent that the judicial branch can be staffed only when the president and the Senate are of the same party. If the Democrats take control, GOP intransigence could lead them to quash the filibuster on Supreme Court nominees, which would further politicize the judiciary and poison the process.

Like many Republicans, Mr. McCain hit a professional low when he endorsed Republican presidential nominee Donald Trump this year, an endorsement he retracted only after seeing a video of Mr. Trump boasting about sexually assaulting women. His vow to further politicize the judicial nomination process is another sad marker.

This demonstrates McCain’s complete lack of character, integrity, honesty and judgment, and his recklessly irresponsible indifference for the U.S. Constitution and separation of powers, as well as performing his duty as a U.S. Senator. McCain is simply an ideological partisan extremist whose time has come to go.

I have used Oliver Cromwell’s dissolution of the Long Parliament in 1653 with reference to John McCain many times: “You have sat too long for any good you have been doing lately … Depart, I say; and let us have done with you. In the name of God, go!”

It is time for Arizonan’s to retire John McCain.