Congressional Oversight II

Extreme Partisanship

My post of May 15, 2019, dealt with President Trump’s success in blocking Congress’s constitutionally required oversight of his administration.  It has only been the extreme partisanship of the political parties, however, that has allowed him that power. 


Since Newt Gingrich’s elevation to Speaker of the House of Representatives in 1994, an increasing polarization of Congress has meant that

a) there’s no overlap in the ideologies of the two parties.  Unlike previous eras, there are no Republicans more liberal than the most conservative Democrat and no Democrats more conservative than the most liberal Republican. 
b) the parties have increasingly demanded absolute loyalty of their members.  Unless there is either a special dispensation, bipartisan support, or a relatively unimportant bill, the pressure on the individual members to vote the party line is almost insurmountable.  While the Democrats have somewhat more ideological diversity than the Republicans, the Democrats nevertheless began following the Republican model and now demand almost the same loyalty. 

Approval by both Senate and the House of Representatives is necessary to pass bills into law.  Whenever different, highly partisan parties control the houses, therefore, the outcome has been a gridlocked Congress. 

The opposite problem stems from the fact that the Senate alone approves or disapproves of presidential Supreme Court nominations.  When the president and the Senate are of the same party, therefore, they can select extreme right- or left-wing judges without the cooperation of the other party. 

The most brazen example of radical partisanship occurred in 2016 after the death of Justice Antonin Scalia.  Within the hour, Senate Majority Leader Mitch McConnell had proclaimed that there would be no hearings on Scalia’s replacement (who would be nominated by then-President Obama) until after the 2016 presidential election, even though twelve months still remained in Obama’s term.  McConnell’s partisan decision was unique in American history. 

McConnell broke no law nor did he act unconstitutionally.  The Constitution says only that the Senate must give “advice and consent” to the president’s nominee: it gives no time limit.  What McConnell did break was a norm  that had existed since the founding of the country: the Senate had never previously blocked consideration of a presidential nomination. 

McConnell’s reversal of his “policy” this past week is as shameless as it is unsurprising.  He was asked, "Should a Supreme Court justice die next year, what will your position be on filling that spot?"  He announced, “Oh, we’d fill it.”  His spokesman explained that after Scalia’s death “the White House was controlled by a Democrat and the Senate by Republicans. This time, both are controlled by the GOP.”  This explains nothing and only reveals McConnell’s willingness to use his raw power to shatter a centuries-old norm that has allowed government to function even in the face of parties with diametrically opposed viewpoints and goals.

The refusal of the Republican Senate to acknowledge even the obvious instances of obstruction of justice described in the Mueller report is another confirmation of the extreme danger to which this level of partisanship subjects our country.  President Trump’s tenuous commitment to our democracy and the Constitution, his tolerance for violence, his attacks on the free press, and the demonization of political enemies are clear indication of an unfit president, yet his party rarely even criticizes him, much less acts against him.  Its partisanship has led the Republication Party to abdicate its constitutionally mandated oversight of the President.


Partisanship has not spared even the Supreme Court.  Chief Justice John Roberts made a rare Court rebuke of a president recently by contradicting Trump’s assertion that there were “Obama judges” deciding against him. “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” said Roberts in a statement. “What we have is an extraordinary group of dedicated judges doing their level best to … [give] equal right[s] to those appearing before them. That independent judiciary is something we should all be thankful for.”  Justice Roberts’s comments notwithstanding, we can’t ignore the large number of decisions that are 5-4 (or 4-5) along the party lines of the presidents who nominated them.  Furthermore, one has to go back to the Eisenhower Administration to find a president nominating a judge from a different political party.  This was not a problem when each president was nominating a moderate liberal or a moderate conservative, but when a president nominates and an extremely partisan Senate confirms an extremist Supreme Court judge, we tip toward a dangerously partisan court, too. 

A different kind of evidence of the Supreme Court’s partisanship is the disputed presidential election in 2000.  The 5-4 decision that brought George W Bush to the presidency was a technical decision about the disputed results of the election in Florida.  It was not a conservative-vs-liberal issue, so there was no reason that it should have been made along party lines.  But it was.  As much as we might want to believe Justice Roberts’s denial, we do have Democratic judges and Republican judges and have had for some time.  The new development is that President Trump, acting without restraints, is nominating extreme right-wing candidates.

Some of the framers of the Constitution foresaw the danger of political parties, but did nothing to prevent it.  Political parties developed immediately after Washington’s presidency and within a few years led to acrimony, demonization of the enemy, and almost fanatical polarization.  Similar polarization has occurred at several times in our history, most notably before the Civil War.


We now face another phase in our country’s history that threatens our republic.  A demagogue with little respect for our Constitution or democracy occupies the highest office of the land.  President Trump is running the country off the rails while the Republican Party hacks away at the track.  Unless Congress and the courts can see the danger, overcome their partisanship and act together to limit our president, we will move inexorably toward an autocracy.  Our democracy is in more trouble than at any time since the Civil War.  We are utterly dependent on the Republican Party to join with the Democrats to fulfill their constitutional responsibility of presidential oversight.