A Long Note on Political Tradition in These United States

President Barack Obama, delivers his State of the Union speech at the U.S. Capitol on Feb. 12, 2013 in Washington, DC.  (Charles Dharapak/AP)

By now of course we have become accustomed to the proposition that Republicans, once elected, would rather sit around. To some it actually seems a very sick idea; not only did the Speaker of the House demonstrate that Republicans conisder their job description to include going on vacation instead of actually working because, well, the most important part of the job is election and re-election, but in recent months the GOP has shown more and more willingness to simply admit that the inherent failure of government is more of a conservative goal than anything else.

Boehner and the band skipped out on gigs that might need Congressional attention, such as the Daa’ish question, the Ebola question, and the Immigration Reform question; despite their howls of rage regarding the latter, the fact of executive action occasionally arises when Congress refuses to pass a bill and the Speaker of the House calls on the President to use his executive authority. They could have skipped screeching themselves hoarse by simply sticking around and doing their jobs. Then again, the prior statement is controversial if only because it would appear that Congressional Republicans appear to believe their first, last, and only job is to win votes. Given their reluctance to undertake day-to-day Constitutional functions of Congress, such as advising and consenting to presidential appointments—or, as such, formally refusing the nomination—we ought not be surprised that the latest duty Republicans wish to shirk is sitting through an annual speech.

Nearly 16 years later, another Democratic president, also hated by his Republican attackers, is poised to deliver his penultimate State of the Union address. And like Pat Robertson, the idea of denying the president a SOTU invitation is once again on the right’s mind.

“Yes, there’s a risk to overreacting, but there’s a risk to underreacting as well,” said Rich Lowry, the editor of National Review. “And I fear that’s the way the congressional leadership is leaning.”

Mr. Lowry suggested one way Congress could react. “If I were John Boehner,” he said, referring to the House speaker, “I’d say to the president: ‘Send us your State of the Union in writing. You’re not welcome in our chamber.'”

Lowry may not dictate GOP decision making the way Limbaugh and Fox News do, but it’s important to note that he isn’t the only one publicly pushing the idea.

Politico reported yesterday that congressional Republicans are weighing a variety of tactics to “address” their disgust over Obama’s immigration policy, and “GOP aides and lawmakers” are considering the idea of “refusing to invite the president to give his State of the Union address.”

Late last week, Breitbart News also ran a piece of its own on the subject: “Congress should indicate to President Obama that his presence is not welcome on Capitol Hill as long as his ‘executive amnesty’ remains in place. The gesture would, no doubt, be perceived as rude, but it is appropriate.”

(Benen)

Wait, wait, wait—sixteen years ago?

Yes. Like impeachment chatter and stonewalling, Republicans want to make refusing to hear the State of the Union Address part of their standard response to any Democratic president.

If one is so inclined, there are discussions afoot about the question of “political norms”, you know, the rituals of Captiol Hill that Republicans like to howl about every time they think they can get away with bawling that President Obama has somehow violated tradition. As Brian Beutler noted for The New Republic:

Eric Posner argues that conservatives should celebrate President Obama’s immigration actions because they “may modify political norms that control what the president can do.” The idea, which will be familiar to everyone following the contretemps surrounding Obama’s immigration policy, is that Republicans will eventually be able to marshall the same powers Obama is asserting to more conservative ends.

But near the end of the article, Posner modifies his own argument by observing that Obama didn’t actually create any new norms last week at all. Rather, he may have revived a long-dormant conservative inclination to “undermine the regulatory system itself,” from within the executive branch, by pushing the envelope of executive power. We’ve already been down this road before—only before, Republicans were at the wheel.

This is a crucial insight. You can’t understand the shadowboxing over Obama’s immigration moves if you don’t recognize it as shadowboxing ....

Manipulation and exploitation of the idea of a tradition is hardly a new thing; Beutler points to Kevin Drum discussing a blog post by Jonathan Bernstein examining norms, traditions, and nullification:

The GOP practice, for the last twenty years or so, has been to play the “game” of politics in part by looking through the rule book for strategies that go beyond the norms of politics but are allowed under the literal reading of the rules. Examples include mid-decade redistricting, the recall of a California governor for no particular reason, and impeaching Bill Clinton. And, most notably, filibusters in the Senate as a routine measure. The idea is that in a normal, healthy, political system there’s always going to be some gap between the written Constitutional and statutory rules on the one hand, and norms and practices on the other. A clever political party can gain occasional short-term advantages through exploiting that difference. Hmmm…19th century baseball: I seem to recall a story that someone (perhaps King Kelly?) was sitting on the bench when a pop foul came near him. Springing into action, he announced “Kelly in at catcher for Smith” and caught the ball for an out, pointing out after the fact to the umpire that nowhere in the rules did it say that substitutions couldn’t take place in mid-play.

The baseball story is apocryphal, but it does reflect something about the concept of sportsmanship, which in turn is important to whatever competition might be underway but in the Congressional Republican outlook is nothing more than a metaphorical sex toy with which conservatives might harass their neighbors. When your object is to render the game unplayable, such manipulation seems nearly a duty.

Where Beutler, for his part, skipped baseball apocrypha and pointed to the debt-ceiling negotiations—which were themselves generally unprecedented and violative of tradition—Steve Benen chimed in with a few more examples:

At least since the Civil War, the 2011 debt-ceiling crisis was the first time a major U.S. political party abandoned the policymaking process, declaring that it would crash the American economy on purpose unless its demands were met. It was effectively an example of political violence, and though Republicans broke no laws, their tactic was a striking betrayal of American norms.

At the time, few on the right raised any concerns at all about process or lawmakers’ willingness to act outside political traditions – conservatives weighed policy and electoral considerations, but little else.

And there’s no reason to stop there.

The notion of a Senate minority blocking literally all consequential legislation, requiring 60-vote supermajorities to pass just about everything, is obviously a break with American norms – but Republicans did it anyway.

Or how about the fight over the Consumer Financial Protection Bureau? For the first time in American history, a minority of the Senate blocked an executive-branch agency from functioning, simply because it didn’t like the agency’s legal existence. Our system’s norms would find such a tactic abhorrent, but the GOP did that anyway, too.

We can do this all day. Mid-decade re-redistricting. Blue-slip abuses. Filibustering cabinet nominees. Government shutdowns.

It is not so much that tradition and historical normalcy are generally good, bad, or otherwise. Rather, the Republican push to manipulate these ways of getting business done in Washington is nothing more than a desperate chucking of stale, moldy spaghetti at the wall in hopes that something noxious will stick.

Any of these examples can be instructive; let us consider for a moment the idea of the “blue slip”, which often seems mysterious to the average American political consumer. The tradition goes that a president will not nominate a judge to a federal bench unless both senators from that state agree to the nomination; this agreement is the blue slip itself. We generally don’t hear any news about who signed which blue slip, but we do hear of its effects. Earlier this year we heard of controversy over President Obama’s nomination of Michael Boggs, who is widely criticized by Democratic supporters as a bigot. Alisa Chang explained for NPR:

As President Obama continues to take heat for nominating to the federal bench a judge who once wanted to keep the Confederate emblem on the Georgia state flag, the White House says what’s partly to blame for the choice is an old Senate tradition.Judge Michael P. Boggs testifies before the Senate Judiciary Committee in 2014.  (via CSPAN3)

It turns out that tradition — which gives virtual veto power over judicial nominations to home state senators — helps explain why almost all the judicial vacancies without nominees are now in states with Republican senators.

There’s an idea in the Senate that it’s still a chamber operating on mutual respect and goodwill between colleagues, even in today’s toxic environment. And that’s why certain traditions from a century ago carry over today — like “blue slips.” These are literally light blue slips of paper senators can use to block any White House choice for judgeships in their home state.

† † †

And that came into focus in Georgia. The White House and Georgia’s two Republican senators had sparred over nominees for more than three years, before finally cutting a deal. Sen. Johnny Isakson said the terms were simple.

“The deal was, we agreed on seven nominees for seven different judicial appointments, and asked for all of them to get a hearing at the same time — and that was the deal,” said Isakson.

The Georgia senators wanted Michael Boggs to be included in the bunch, and that’s what they got. Boggs is a state judge and former legislator who opposed abortion, denounced same-sex marriage and wanted his state flag to continue featuring the Confederate battle flag.

The blue slip tradition worked as it is supposed to; in September, the Senate Judiciary Committee quashed the nomination, with chairman Sen. Patrick Leahy (D-VT) announcing in September that Judge Boggs lacked the votes to pass committee. Sen. Johnny Isakson (R-GA) noted the White House fulfilled their part of the bargain. Besides, Republicans will hold a Senate majority in the second session of the 114th Congress, and can push Boggs’ nomination through.

Via National Public Radio, 29 May 2014.Boggs might be the exception, however, as Republicans have begun opposing their own nominees. While Boggs’ nomination is still afloat insofar as it has not been withdrawn, Sen. Marco Rubio (R-FL) opposed the nomination of Judge William Thomas, whose blue slip he had already signed. Why would he do that? Judge Thomas is gay. As we see with Senate Republicans, being an open bigot is a qualification for a bench; being gay is a disqualification. While Sen. Richard Burr (R-NC) had previously recommended Judge Jennifer May-Parker to the long-vacant U.S. District Court for the Eastern District of North Carolina, he decided in 2013 that, as part of the GOP’s obstructionist strategy, he would refuse her blue slip. The bench remains the longest-vacant in the federal judiciary.

Furthermore, as we have seen in other nominations, Republicans will kick, scream, and bite in order to prevent nominations from going forward, but once the nomination reaches a vote, they back the nominee, anyway. Consider Al Kamen’s report for the Washington Post in September—

The Senate on Wednesday, moving at what can be called warp speed in the post-“nuclear option” world, confirmed seven more Obama nominees — including career Foreign Service officer John R. Bass as ambassador to Turkey, a country critical to the effort to defeat the Islamic State militant group.

The Senate held a roll call vote on the nomination — before voting 98 to 0 to confirm him.

—and the a complaint from Senate Democrats in June—

Not content with only blocking bills and nominations they actually oppose, Republicans are even filibustering nominations with UNANIMOUS SUPPORT. This year alone, Senate Republicans have already blocked confirmation votes on 22 nominations that they later voted unanimously to confirm, wasting literally days of post-cloture time in the process. This week alone, Republicans blocked confirmation votes on 4 nominees that later earned unanimous support.

—or even Steve Benen’s Spetember iteration of the recurring question: “Why filibuster a nominee with unanimous support?”

In the noise and bluster about Republicans objecting to Democratic objections to Republican objections to President Obama it might be easy enough to overlook the idea of Beltway norms and traditions, yet Americans who remember even mere fragments of their civics education ought to be familiar with the phrase “advice and consent”:

He 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.

(U.S. Constitution II.2)

And here we see an example of how Beltway traditions work; the blue slip process has given the Senate more say in who gets nominated in the first place, and the method of Republican obstruction, even in the minority, has been that the President should only nominate who Republicans say should be nominated.Via Democratic Policy & Communications Center, 24 June 2014.

It all feeds into our joke about the Republican definition of compromise: We will tell you what to do, and you will do it. See? Compromise. Everybody has a part to play.

This is how traditions twist in the District, and the GOP seems willing to keep wrenching until the system breaks; after all, it would be another feather in the cap of their pet thesis that government just doesn’t work.

And perhaps it might occur to wonder if maybe the saboteur is the last person who should be talking about why the system doesn’t work, but we must also remember the power of such fallacious arguments; Americans are so enamored with this way of doing things that they just voted Republicans into the Senate majority. To that end, it is one thing to complain that government doesn’t work, but when you hear Republicans from, say, Iowa, making that case, simply bear in mind that dysfunction is actually their goal. And why should anyone complain about getting what they want? (Hint: The answer is that voters reward such behavior.)

All of which brings us, roundabout (not really, as we’re still flapping in the wind) to the tradition of the State of the Union Address. All the Constitution demands is that the president brief the senate; nothing in the rules says he must wander down the street to actually stand in front of Congress. And, much like any other expectation that isn’t officially codified, Republicans now want to twist this Beltway tradition as part of their partisan slapstick.

It might just be that Americans are in a mood for busting traditions; the only real explanation for the fights we pick in this context is a manner of subjective empowerment. That is, it feels good to stick it to the powers that be, despite whatever troubles that might invite, and, besides, people can just complain about those outcomes and stick it again.

Perhaps the key will be to watch whether the GOP takes the White House in 2016, and how quickly Republicans scramble to get in line with allegedly inviolate Beltway traditions they had previously kicked to the gutter. It is true that our politics are mired in myriad stupidity and vice, but it is also true that not all vices are the same, and some stupidity is just stupid and not harmful.

In the end, the noise and bluster about refusing President Obama access to Congress for the State of the Union Address will be larger than its actual significance in the everyday lives of the American people, but it is also exemplary of just how hard we are drilling this particular rabbit hole.

And as for blindly mucking around in the holes of rabbits? Right now, that’s what the American people want. It’s what they voted for.

____________________

Benen, Steve. “Will the GOP scrap Obama’s State of the Union address?” msnbc. 26 November 2014.

—————. “The right selectively sees political norms as important”. msnbc. 25 November 2014.

—————. “Why filibuster a nominee with unanimous support?”. msnbc. 17 September 2014.

Beutler, Brian. “Where Was Republicans’ Concern for Political Norms When They Took the Debt Ceiling Hostage?” The New Republic. 24 November 2014.

Drum, Kevin. “How the Game is Played”. Mother Jones. 19 July 2011.

Bernstein, Jonathan. “Nullification and Democratic Norms”. A Plain Blog About Politics. 19 July 2011.

Zurcher, Anthony. “Tall grass, close walls: How sports teams scheme for wins”. BBC News. 20 November 2014.

Chang, Alisa. “Old Senate Tradition Lies Behind Controversial Judge’s Nomination”. Natioanl Public Radio. 29 May 2014.

Kamen, Al. “Senate confirms ambassador to Turkey — key player in the effort against the Islamic State”. The Washington Post. 17 September 2014.

Democratic Policy & Communications Center. “How the GOP Took Obstruction to a New Level: Blocking Nominations That Have Unanimous Support”. 24 June 2014.

United States Constitution. 1992.

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