With the Obamacare repeal fiasco ongoing today, House Republicans are working overtime to reclaim the undisputed title as “the stupid party,” but they are wasting their time, as the Democrats seem determined to keep the title all to themselves. Elsewhere Scott has noted the dumbest questions Senate Democrats have asked soon-to-be-Justice Neil Gorsuch, but one in particular stands out—Sen. Klobuchar’s annoyance that the Constitution uses the generic pronoun “he” so many times in reference to the president in Article II, as if this meant that to an “originalist,” the Founders thought a woman couldn’t be president. Never mind that Article II’s key eligibility clause uses the noun “person;” I wonder what Klobuchar makes of, for example, the use of the generic masculine pronoun in the extradition clause of Article IV, which reads: “A Person charged in any state with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.” (Emphasis added.)
Question for Sen. Klobuchar: Like your reading of “he” in Article II, do you think an originalist thinks this meant only men could be extradited for crimes? Of course not: only a Democrat could think something so silly.
Then there’s former Wisconsin Senator Russ Feingold, who writes breathlessly in The Guardian the Gorsuch’s confirmation will destroy the legitimacy of the Supreme Court. Yes, I know destroying the legitimacy of American institutions is something liberals think only liberals should get to do, but jealousy is not the ground of Feingold’s primal scream:
Never before has Senate leadership so openly and intentionally played political games with our highest court. Already, the legitimacy of the supreme court has taken a severe blow because of it. But, if Gorsuch is confirmed, it would lock in a dangerous precedent from which the legitimacy of our highest court might never recover.
Republican senators abandoned their constitutional responsibilities and blocked Judge Garland’s nomination last year, for 293 days, leaving the court without a deciding vote on critical issues. They offered no legal justification for their actions, fully admitting that their sole intention was to orchestrate a coup of the supreme court by betting that a Republican would win the White House.
Of course Feingold is flat wrong that the Senate “abandoned their constitutional responsibilities” and “offered no legal justification for their actions.” But never mind an argument about the Senate’s “advice and consent” function under Article III. (The Senate would be perfectly within its constitutional rights to confirm no one, and let the Court’s number of justices shrink by attrition, as the Constitution does not fix the size of the Court.) Let’s go to some undisputed numbers to see how tendentious is Feingold’s suggestion that it is a scandal that we’ve gone without a ninth justice for 293 days. For this we have the Pew Research Center to thank for this handy piece of work:
We haven’t even caught up yet with the year-plus vacancy during the Nixon years.