Founders couldn’t predict contention

Watching the latest dust-up in Congress sheds light on why Donald Trump attracts so many voters. They’re sick and tired of business as usual.

More to the point, they’re tired of no business being the usual fall-back of a Congress more interested in partisan gamesmanship than in good public policy.

The latest frustrating incident is the decision by Senate Republicans not to act on the nomination of Merrick Garland to the U.S. Supreme Court and, in fact, not even to meet with him as a courtesy. The former is a prime example of congressional gridlock; the latter is just bad manners.

Senate Majority Leader Mitch McConnell, R-Kentucky, explained that filling a vacancy on the high court is far too important to be left to a president in his final year of office, since the appointment will affect court decisions far into the future. At the time McConnell spoke, Barack Obama had more than nine months to go in his second-term presidency.

If we follow that line of thinking, then maybe we shouldn’t count the votes of any senator who faces a contested election this fall, especially if it’s a vote on an issue that will affect the nation far into the future. After all, if congressional decisions are to reflect the will of the electorate, we ought to wait until the electorate has spoken.

It’s not clear, of course, exactly how long McConnell thinks Congress should wait for the electorate to speak. Nine months? A year? Maybe the entirety of a second presidential term?

Whatever, McConnell is serious. Recently The Courier-Journal, his hometown paper in Louisville, Ky., reported that he won’t be acting on Obama’s nomination of Lisabeth Tabor Hughes, a justice of the Kentucky Supreme Court, to the 6th Circuit Court of Appeals. McConnell is unhappy that the president submitted the nomination “without notifying McConnell,” according to his spokesman.

Wow. It’s going to be a long nine months.

This is a high-risk game on McConnell’s part. Does he really think he’ll get an improved candidate from a Donald Trump or a Ted Cruz? Is he gambling that a Hillary Clinton or a Bernie Sanders will forward a better choice than Merrick Garland (who, by all accounts, is highly qualified for the court)?

The U.S. Constitution doesn’t say a word about timing when it sets forth the process for presidential appointments to the high court. Article II, Section 2, gives the president the power to “nominate…by and with the Advice and Consent of the Senate…Judges of the [S]upreme Court….”

In this case, the president has done his part. McConnell is making sure the Senate won’t be doing its part.

This is not an anti-Republican screed. There’s as much partisanship on the Democratic side of the aisle as on the GOP’s side. It’s just that Republicans have the upper hand right now in making sure the nation’s business doesn’t get done.

In fact, it’s easy to see how this might play out over the years. Already Republicans are using an old Joe Biden comment to justify ignoring the presidential nomination. In time, if Democrats win a majority, they’ll undoubtedly cite McConnell’s stance to justify delaying action. And so it will go.

The men who wrote the nation’s Constitution wrestled with a lot of tough issues in 1787. For details, read Catherine Drinker Bowen’s “Miracle at Philadelphia,” published in 1966 and still a highly readable account of the issues of that time.

Given the Constitution’s lack of detail, it’s obvious its drafters assumed a certain amount of good will and commitment to good governance would fill in the gaps in the years ahead. They laid out the broad strokes and expected future leaders to decide how best to do their business.

How could they foresee a time when “compromise” would be regarded as a dirty word, when learning new information and changing one’s mind would be derided as a “flip-flop”?

Had they anticipated the partisan bickering and gridlock we have today, they might have written a different document. Or they might have just thrown up their hands and gone home. It would be hard to blame them.

This story was originally published March 26, 2016 at 12:05 AM with the headline "Founders couldn’t predict contention."