Washington’s hypocrisy is a truly bipartisan affair
If there is one thing that is bipartisan in Washington, it is brazen hypocrisy.
Currently there is much indignation being expressed by Democrats because the Republicancontrolled Senate refuses to hold confirmation hearings on President Obama’s nominee to the Supreme Court, to fill the vacancy caused by the death of Justice Antonin Scalia.
The Democrats complain, and the media echo their complaint, that it is the Senate’s duty to provide “advice and consent” on the president’s appointment of various federal officials. Therefore, according to this claim, the Senate is neglecting its constitutional duty by refusing even to hold hearings to determine whether the nominee is qualified, and then vote accordingly.
First of all, the “advice and consent” provision of the Constitution is a restriction on the president’s power, not an imposition of a duty on the Senate. It says nothing about the Senate’s having a duty to hold hearings, or vote, on any presidential nominee, whether for the Supreme Court or for any other federal institution. The power to consent is the power to refuse to consent, and for many years no hearingswere held, whether the Senate consented or did not consent.
Nor haveDemocrats hesitated, when they controlled the Senate, to refuse to hold hearings or to vote when a lameduck president nominated someone for some position requiring Senate confirmation during a presidential election year.
When the shoewas on the other foot, the Republicans made the same arguments as the Democrats are making today, and the Democrats made the same arguments as the Republicans are nowmaking.
The obvious reason, in both cases, is that the party controlling the Senate wants to save the appointment for their own candidate for the presidency to make after winning the upcoming election. The rest is political hypocrisy on both sides.
None of this is new. Itwas alreadywellknown 40 years ago, when President Gerald Ford nominatedme to become one of the commissioners of the Federal Trade Commission during the 1976 presidential election year.
After months passed without any hearings being held, Iwent to see the chief legislative aide of the committee thatwas responsible for confirming or denying. When the two of uswere alone, he said to me, quite frankly,“We’ve gone over your record with a fine tooth comb and can find nothing to object to. Sowe are simply not going to hold hearings at all.”
VariousDemocrats who are currently denouncing the Republican Senate, including Vice President Biden, have used very similar arguments against letting lame-duck Republican presidents appoint Supreme Court justices.
Lastweek, theNewYork Times ran a front-page “news” story about something Chief Justice John Roberts had said, more than a month ago, prior to the death of Scalia, under the headline “Stern Rebuke for Senators.”
Since Scaliawas still alive then, and therewas no Supreme Court vacancy to fill at the time, Roberts’ remarks had nothing to do with the current controversy. Norwere these remarks news after such a long lapse of time. But thiswas part of a pattern of theNewYork Times’ disguising editorials as front-page news stories.
In short, the political hypocrisywas matched by journalistic hypocrisy. Indeed, therewas more than a little judicial hypocrisy in Roberts’ complaint that Senate confirmation hearings on Supreme Court nominees do not confine themselves to the nominees’ judicial qualifications, rather than their conservative or liberal orientations.
If judges confined themselves to acting like judges, instead of legislating fromthe bench, creating new “rights” out of thin air that are nowhere to be found in the Constitution, maybe Senate confirmation hearings for Supreme Court nominees would not be such bitter and ugly ideological battles.
Roberts himself practically repealed the 10th Amendment’s limitation on federal power when he wrote the decision that the government could order us all to buy Obamacare insurance policies. When judges act like whores, they can hardly expect to be treated like nuns.
Politicians, journalists and judges should all spare us pious hypocrisy.
Thomas Sowell is a senior fellow at the Hoover Institution, StanfordUniversity, Stanford, CA94305. His website is tsowell.com.