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Strike? Mutiny? Coup? Thune and Rounds Gibber About Presidential Legitimacy

What’s that I hear from Scalia’s grave? ‘Ochlocracy!’?

Meanwhile, back at the ranch, South Dakota’s U.S. Senators are refusing to do their job and spinning the stunningly anti-republican (small r intended—hold that thought), extra-constitutional position that Supreme Court Justices ought to be chosen by plebiscite.

Responding immediately to President Barack Obama’s nomination of Judge Merrick Garland to fill the vacancy on the Supreme Court created by the death last month of Justice Antonin Scalia,

John ThuneFor the last seven years, President Obama has attempted to circumvent Congress and the will of the American people with unconstitutional, overreaching regulations. The Senate Republican majority was elected to be a check and balance to President Obama.

The American people deserve to have their voices heard on the nomination of the next Supreme Court justice, who could fundamentally alter the direction of the Supreme Court for a generation. Since the next presidential election is already underway, the next president should make this lifetime appointment to the Supreme Court [Senator John Thune, press release, 2016.03.16].

Senator Mike Rounds scuttled to the Senate floor to second Thune’s position that the Senate does its job by not doing its job:

Mike RoundsThis decision will allow the American people to have a voice in the next Supreme Court Justice based upon who they elect as president this November.

My colleagues on the other side of the aisle have argued that the American people did have a voice when they elected President Obama in 2012 – but that election was nearly 3 and a half years ago.

Since that time, a lot has changed in our country, signaling a shift in Americans’ views of our president and his philosophy of governing….

Whoever is confirmed to fill the open seat on the Supreme Court will be serving a lifetime appointment.

Keeping in mind the current political makeup of the court, the man or woman who will replace Justice Scalia has the potential to hold incredible influence over the ideological direction of the court for a generation to come.

It is critically important that the next justice is committed to upholding the principles of the Constitution.

We owe it to Justice Scalia, our judicial system and the Constitution to uphold the highest standards when determining our next Supreme Court Justice.

We also owe it to the American people to make certain their voice is heard in the upcoming elections.

For these reasons, I agree with my colleagues on the Judiciary Committee and in Senate Leadership that we should not hold hearings on a Supreme Court nominee until after our new president takes office [Senator Marion Michael Rounds, remarks prepared for delivery on Senate floor, 2016.03.16].

I’m curious: if Jay Williams beats John Thune in this year’s Senate race, will Mike Rounds declare his own term over as well?

Senate Majority Leader Mitch McConnell maintains that the Senate’s refusal to do its job is “about a principle, not a person.” Yet the remarks from Thune and Rounds make clear that refusing to consider any nominee is very much about one person: President Barack Obama. It’s about refusing to recognize the legitimate authority of the President of the United States. It’s about pretending they can declare a President’s term effectively done three and a half years after his reëlection.

Thune and Rounds aren’t calling for a strike. They are staging an impeachment without an impeachment, a  mutiny, a bloodless half-coup. They declare the President has no legitimacy, but unable to install their own Pinochet right now, they pretend to make The People the new President. They red-line Article 2 Section 2 of the United States Constitution and say The People pick Supreme Court Justices in the general election.

Justice Scalia hated the democratic process. The Constitution that Scalia claimed to originalistically defend envisioned choosing judges, ambassadors, and other high officials by a most republican (small r again!) process of appointment by a President chosen by the Electoral College and advice and consent from Senators chosen by state legislators. He must spin in his warm and wormy grave at the Republicans’ feigned desire to replace that republican process with what our Founding Fathers would have called mob rule (especially if they could have seen a Trump rally).

Thune and Rounds are defending no principle. They are attacking a person. They are attacking the Presidency. In pretending the twice duly elected President has no authority to act in his last year in office, Thune and Rounds call into question their own legitimacy.


  1. mike from iowa 2016-03-17

    Yeah,but,Joe Biden said……

    Wingnuts honor the constitution by dis-honoring it. Makes perfect wingnut sense.

  2. Super Sweet 2016-03-17

    And some people wonder why Trump is so popular…

  3. Ed Campbell 2016-03-17

    If as Rounds claims, the President is not really the President because he was last elected over three years ago, then should Thune not really be a Senator since he was last elected over five years ago?

  4. Ed Campbell 2016-03-17

    Senate Republicans want to avoid their “advise and consent” responsibility to allow the “voice of the people” to be heard. Does one therefore infer that those GOP senators do NOT reflect the “voice of the people”?????? Public opinion polls seem to back up that assertion.

  5. Loren 2016-03-17

    We never seem to hear anything from these two airheads until the (R) talking points memo comes out, and then their comments are almost word for word! Geez, I hope we can get rid of Thune in the next election and get some work done!

  6. Dana P 2016-03-17

    sigh…..and to Thune/Rounds – where exactly does this “magical number” get defined as to when the President’s term ends and when he needs to stop doing his job? So, the last year of every presidency, nothing gets done? There is no such thing as a President? What if Scalia had died around Thanksgiving 2015? Or around Halloween 2015? What would the excuse be then? Where does the “cut off” end? Mr Rounds plays loosey goosey with his “nearly 3 1/2 years ago” term. Uh…..that would be more accurate if this was the month of June.

    Just because George W Bush didn’t do a lick of work in the last year of his Presidency (when the country was in an economic free fall) doesn’t mean that the current, legally elected (not appointed by the Supreme Court) President should sit on his hands and not fulfill his constitutional obligation – as well as, it just isn’t right to have a Supreme Court – the highest court in the land – vacancy for such a long period of time.

    So if none of that is going on, then it boils down to what Cory is saying. Thune/Rounds are saying that a President can nominate…..just not THIS President. By all of the obstructionism the last 7+ years, the letter to Iran (signed by Thune/Rounds) etc….is just a pattern of behavior that has stopped this country from growing, and has attacked the legitimacy of this President from the day he was elected.

    If roles were reversed, I would have said/felt something like, “oh the luck of it all that there is a Republican President when there is a vacancy on the Supreme Court, darnit. Oh well, that is how it goes”. But I would also expect that the President and the sitting politicians do their job. No matter who the nominee was.

    And these folks want to be a shining example to the world as to how democracy and the “system” works in this country? Makes me shake my head.

  7. Curt 2016-03-17

    It’s worth noting that the document adopted by the Founders provided for much less participation in elections. White men, age 21 and older who were also ‘free-holders’ (owners of property) constituted the electorate. Not sure Trump wouldn’t advocate a return to that ‘strict constructionist’ interpretation.

  8. Rorschach 2016-03-17

    I don’t recall Mike Rounds arguing as a state senator that Walter Dale Miller (who was never elected governor) shouldn’t appoint judges in 1994 because there was an election coming up. I never heard him say as state senate majority leader that Janklow shouldn’t appoint judges in 1998 or 2002 because there was going to be an election those years. And I certainly never saw Governor Rounds act on his principles and refrain from appointing judges in 2006 and 2010 in deference to voters.

  9. Nick Nemec 2016-03-17

    Hell, didn’t Mike Rounds approve sweetheart EB-5 contracts for his buddy Joop in the final days of his governorship?

  10. M.K. 2016-03-17

    It’s always interesting to me how our Senators always use the term “the American People” and they never say who the American people are. Or who they are talking to …. if anyone. This is their personal bias. A lot of politicians do this. They boast they are on the side of the “American People”. When is the last time, our Senators or House Rep. …. has represented us?? They have a personal grudge against the President. I have never seen such a disrespectful congress in my lifetime. You can be for President Obama or not be for him … but he is still President of the USA. Cory, keep the “r” small. That’s where is should stay.

  11. Eve Fisher 2016-03-17

    I’ve written to both of them, expressing my opinion, which is GET OFF YOUR ASS AND DO YOUR JOB. Not that they’re going to listen to me.

  12. Caz 2016-03-17

    I am always astounded (I know I shouldn’t be) that every time I see Mitch McConnell on television, I see John Thune immediately behind him. Does not compute.

  13. Bill Dithmer 2016-03-17

    Does Thune get DTs VP nod? He has sold out for a lot less then that.

    The Blindman

  14. W R Old Guy 2016-03-17

    Some of the Republicans are having second thoughts. The ones up for reelection are worried. Susan Collins of Maine (who isn’t up for reelection) thinks that it is better to appoint Garland as a moderate judge with a long record on the courts than have Clinton be elected and appoint a far more liberal judge. The Senate is also up for grabs this election.

    Senator rounds will do whatever the Republican leadership tells him to. Senator Thune will do the same. Thune is always in the background when Mitch McConnell is making an appearance as a distraction so you don’t notice who is pulling McConnell’s strings.

  15. caheidelberger Post author | 2016-03-17

    Dana P., bingo. We define the President’s term for a reason. Rounds has no standard by which to claim (three and a half years since the election” constitutes reason to shut down the Presidency.

    The President has his full authority until noon on January 20 four years after his election, or until Congress impeaches and convicts the President of specific crimes, or until unless some sort of 25th Amendment incapacity strikes down the President. Thune and Rounds are trying to craft some extra-constitutional way to render the Presidency moot.

  16. Roger Cornelius 2016-03-17

    John Tristan over on the Constant Commoner has a powerful blog on the Supreme Court nominee.
    In John’s opening comments he refers to the Trump wrecking ball that is being used to destroy John’s Republican Party. We know that the national republican party is on pretty shaky ground and with Trump adding fuel to the fire may just cause its eruption before the convention.
    There is Trump promising riots if he does get the republican nod, and Bob Fisher, Rapid City businessman, out raising money and looking for a better alternative to Trump and Cruz. What happens when these two groups come together at their convention?
    I make these points to make a larger point, if republicans Rounds and Thune continue their childish behavior, how will real republicans like John Tristan react to their behavior.
    Pissing on the U.S. Constitution the way Rounds and Thune have disqualifies them from office and voters need to tell Thune that November.

  17. Ray Tysdal 2016-03-17

    The whole thing is much simpler that all this. Mitch McConnell and the republican party announced that they would NOT WORK with the President of the United States, Barak Obama, BEFORE he was sworn in. Over seven years later they are calling the President of the United States a lame duck, sort of like they have said since before he took office. Republicans used to (sort of) work with Democrats. Not any more…the republican party is RACIST!!! THUNE AND ROUNDS ARE RACISTS!!!

  18. David Newquist 2016-03-17

    Mitch McConnell made Jim Crow part of the Senate procedural rules. Until Trump gave the racists courage to be blatant about their racial hatreds, the Republicans hid behind the idea that their obstructions were policy differences.

  19. leslie 2016-03-18

    Hamilton expressed his understanding, shared by fellow Framers, that the Senate’s “advice and consent” power, contained in the document’s Article II, Section 2, was meant to provide a check on unfit or unqualified presidential appointees. While he did not envision that the Senate would serve merely as a White House rubber stamp, or totally eschew political tugs, he assumed the chamber would consider nominees on their merits.***

    In Alexander Hamilton’s words, “the true test of a good government is its aptitude and tendency to produce a good administration.” Keeping a Supreme Court seat vacant for a needlessly extended period, as Republican leaders favor, would do the exact opposite, provoking 4-4 ties and damaging legal uncertainty while badly undermining the Constitution.

    Our constitutional system only works if the institutional players adhere in good faith to the Constitution’s basic rules. Our strong hunch is Hamilton and other Framers, were they alive today, would not hesitate to call out Republican leaders for their pre-announced departure.

    Dorothy Samuels is a senior fellow and Alicia Bannon is senior counsel in the Democracy Program at the Brennan Center for Justice at NYU School of Law.

  20. leslie 2016-03-18

    Linda Greenhouse, who teaches at Yale Law School and has covered the court brilliantly for decades, recently wrote in the New York Times: “The conservative majority is permitting the court to become an agent of partisan warfare to an extent that threatens real damage to the institution.”***

    Even if Bork had never been “borked” (verb: to have one’s nomination to high office be subject to zealous political attack)…; it was Bork who was left standing at Justice on the evening of October 20, 1973 following the “Saturday Night Massacre,” which saw the firing of Archibald Cox and the resignation of Elliot Richardson.” ***

    For those readers who are not familiar here are the cliff notes: The President of the United States was actively involved in the cover up of a burglary of the headquarters for political opponents. The Attorney General appointed independent counsel who was doing his job a little too well and getting close to discovering the truth. The President directed the Attorney General to fire the independent counsel. The Attorney General refused and was fired. The Attorney General’s immediate successor also refused to fire the independent counsel and resigned. Then, along came Bork who agreed to fire the independent counsel, and presto – he was “left standing.” I would submit that it was Bork’s willingness to participate in the obstruction of justice that this author is championing.

    (commentor wildrover4 • 3 years ago)

  21. M.K. 2016-03-18

    Why do South Dakotans keep voting in these “r’s” over and over ?? Not just these two; but at the state level too. It just baffles me. If you are an “r” you are in. Many times, it’s not even about the issues.

  22. caheidelberger Post author | 2016-03-18

    From John Nichols on Twitter: “Bush lost popular vote by 500,000 in 2000 election and was installed as president. Of course R elites are cool w/displacing top vote getter.”

    If Rounds contends that President Obama is illegitimate in 2016 because the 2014 voters repudiated his majority, then Rounds should have repudiated the Bush Presidency from Day 1.

  23. mike from iowa 2016-03-18

    Bork was,at the very least,given a hearing by the judicial committee. It was televised. Obama’s nominee,who before yesterday was the wingnuts justice of choice,has been pre-emptively borked.

  24. Sandy Dean 2016-03-18

    It is just another pock mark come to the surface of the systemic infection of a country sold out to Wall Street via the legal system that is more carnival games than justice. A system based on how much truth can be perverted or hidden vs truth, whole truth & nothing but the truth. South Dakota is at the center of deregulation and mafia banking practices so why wouldn’t they elect the second generation of liars & thieves to the big leagues to finish what their leader started. The GOP is in self destruct mode – the first string has run off with the spoils and they will leave it to these goats to take the fall – along with the good citizens & crippled middle class & dumbed-down impoverished youth. They may have gone too far this time – SD used to at least send the Dems to Washington to bring home the money for the R’s to pocket and squander. These guys can’t even do that and the Dems let it happen .. Anybody up for doing the right thing because it is the right thing to do would be refreshing on all levels. The clean up starts with throwing out ALEC – not using tax payer’s money to brainwash our lawmakers and dictate the laws in preparation of sending everything back to the states so we have no central government as a big picture watchdog over 50 separate demagogs. It is a civil war with 50 sides and the causalities are the American People – innocent & guilty alike. We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. I have seen no behavior in the last decades that shows any desire for the Republicans – state or federal – to support this purpose and failure of the rest to stand up to them.The Reps thought they could use the Tea Party for a spear but fell on it instead – and that is how you get Palin – Trump.

  25. John 2016-03-18

    “Bush lost popular vote by 500,000 in 2000 election and was installed as president. Of course R elites are cool w/displacing top vote getter.” By all rights, the US should have had a coup. The American electorate are lemmings, rapidly adopting what the Founders would have fought and died against.

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