Through the Looking Glass

By GENE NICHOL

I’m not generally inclined to listen to speeches by Sen. Thom Tillis (R-N.C.). Still, recently, Tillis was tapped to deliver the GOP’s weekly response to President Obama. Tillis’ assignment was to defend the Republican refusal to consider the appointment of Merrick Garland to the United States Supreme Court. Having agreed to do a program on the topic, for me, a review of the talk seemed near mandatory. I’ll be more cautious in the future.

Tillis’ speech was short, as befits the genre. He made, as best I could glean, four somewhat stunning claims about the senators’ decision to cast aside the constitution’s requirement that “the President shall appoint and the Senate advise and consent” to the naming of new justices.

First, Tillis said that duty and national interest demand that the Senate refrain from holding hearings or voting on Garland because his nomination is “unique”. It is thought singular, apparently, because a political campaign is underway and because the appointee would replace the sainted Antonin Scalia – famed champion of limiting constitutional interpretation to the intended meaning of the framers.

I move past this argument quickly since President Obama has already ground it mercilessly underfoot. But the constitution demands advice and consent without any listed exceptions for election years or right-wing icons. And paying homage to Scalia by boastfully violating the text, intention, history, traditions and structure of the US Constitution is beyond rich.

Next, Tillis argued that declining to hold hearings and vote on a nominee is, after all, an appropriate exercise of “advice and consent.” So, a Senate which flatly refused to even consider any presidential appointments – thus incapacitating the operation of two branches of government – would be carrying out its obligations rather than nullifying them. Refusing to offer advice and consent, in other words, constitutes advice and consent. No is yes, black is white, false is true. As with Humpty Dumpty, “a word means just what [he] chooses it to mean, neither more nor less.” Of course, with Tillis, we know the methodology sweeps broader. Refusing to feed starving children, nurtures them. Denying them life saving health care, savors their dignity. Giving massive tax cuts to millionaires secures the prosperity of the poor. Such is life through the looking glass.

Third, Tillis asserted, without detectable shame, that the decision not to review Garland’s nomination is “about the principle, not the person.” Now, to be candid, I’m pretty sure that exercises of advice and consent are decidedly about the person, not the principle. But looking past this modest point, what is the “principle” to which Tillis hitches his star? The answer, he explained, is that “the people should have a voice” in picking the justices. It is true that our founders thought much about the notion of electing judges, giving the “people their say”. But they rejected it out of hand – going so far as to assure judges life tenure to separate them as much as possible from the moods of the populace. So much for principle.

Finally, Tillis sought to justify the Senate boycott of explicit constitutional duty as a demonstration of “bi-partisanship and cooperation between the polarized branches of the federal government.” I’ll admit I had to play that part back again. By this point, our junior senator had lost his moorings. Refusing to even consider the appointment of one of the nation’s most accomplished jurists, after the president has followed the constitution’s strictures to the letter, in order to foster bi-partisanship is akin to electing Donald Trump to encourage civility, or perhaps, personal modesty. It is surprising the words didn’t turn to ashes in Tillis’ mouth.

I must admit I don’t know whether the Senator read this speech before he delivered it. I guess we can hope he didn’t. I’d be slow to conclude he’s not a smart fellow. Bless his heart. But I’m inclined to think that, like McCrory, he has become so accustomed to mushing through the talking points – no matter how distant they are from reality – that his words don’t register, even on the home front. One need neither understand nor believe what one utters. After all, it’s only politics.

I wouldn’t quickly compare Thom Tillis to the frontrunner in the Republican presidential primary. But the cynical repetition of demonstrably, and even hideously false, pufferies – which has now become habitual for Tillis — is no marked improvement over Trumpism. Deploying venom and dispensing bile are not the only ways to demean American political discourse — or to embarrass the people of North Carolina.

Gene Nichol is Boyd Tinsley Distinguished Professor of Law and in 2015 started the Poverty Research Fund at the University of North Carolina School of Law after the UNC Board of Governors closed the school-funded Poverty Center. He is also President Emeritus of College of William & Mary.

From The Progressive Populist, May 1, 2016

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