WS Chronicle

Rob Schofield

Guest Columnist

It probably shouldn’t come as any great surprise that North Carolina Senator Richard Burr has thrown in with the obstructionist hard right when it comes to the consideration of any nominee that president Obama might put forth to fill the Supreme Court seat of the late Antonin Scalia. It is, after all, an election year and right now the Senator has primary challengers from his party’s extreme right wing.

Still, for a man not known as a tea partier (Burr at one point this year was quoted by credible sources as having said he’d favor Bernie Sanders over Ted Cruz in the 2016 election), the senator’s official statement issued just hours after the discovery of Scalia’s body and a full 341 days prior to Inauguration Day 2017, is notably hardline. Here’s the conclusion:

“In this election year, the American people will have an opportunity to have their say in the future direction of our country. For this reason, I believe the vacancy left open by Justice Scalia should not be filled until there is a new President.”

Not much wiggle room there.

As the Greensboro News & Record noted in a pair of editorials in recent days, however, Burr’s statement is a substantive and, quite likely political, mistake.

This is from last Tuesday:

“There is no precedent for denying presidents the chance to appoint justices to the court in the final year of their presidency. They have done so several times, most recently in 1988 when the Senate unanimously confirmed President Ronald Reagan’s choice of current Justice Anthony Kennedy.

“Someone could just as credibly argue that Burr, who’s running for re-election this year, should leave important votes to whomever the people of North Carolina choose for his seat in November. But that’s absurd. Burr was elected to a full term; so was Obama. They shouldn’t stop doing their jobs just because their terms are running out. Obama will be in office for 11 more months — plenty of time for the nomination and confirmation of a Supreme Court justice, and too long to leave a vacancy.”

And this past Sunday, in an editorial titled “Burr walks into a trap,”  the N&R noted that the full blockade stance will be hard to defend in the months ahead:

“… Burr should reconsider. Last year, he voted against the confirmation of Greensboro native Loretta Lynch as attorney general. Now he’s saying no to anyone nominated for a Supreme Court seat, “Sight unseen.”

He could be embarrassed if Obama nominates a compelling or popular moderate judge, such as Albert Diaz of North Carolina, who was confirmed without opposition to a seat on the 4th Circuit U.S. Court of Appeals in 2010. Burr strongly supported Diaz, a former military judge in the Marine Corps. On what grounds could Burr object now?

The idea that a president with 11 months left in office shouldn’t get a Supreme Court appointment doesn’t wash. There’s no precedent or constitutional authority for such a position. The next president will have his or her appointments when other seats come open. If Burr snares himself in the trap of obstructionism, voters will have reason to elect a new senator.”

A familiar pattern

Perhaps the reason Burr jumped so quickly to embrace the obstructionist position is because it feels so familiar to him. As N.C. Policy Watch readers will no doubt recall, Burr has a long history of summarily and without explanation blocking nominees to the federal judiciary. This has been most notable in the United States District Court for the Eastern District, where due to Burr’s longstanding roadblock, the court (and the citizens it serves) have now been short a judge for more than a decade.

As reporter Sharon McCloskey explained last March (and in numerous other articles), Burr blocked President Obama’s nomination of federal prosecutor Jennifer May-Parker for so long that the nomination has lapsed and the White House has given up on naming an alternative.

“The federal courts in eastern North Carolina have been operating under a state of judicial emergency for years now, though you wouldn’t know it given the lack of a sense of urgency exhibited by the state’s United States senators.

“Down a judge since December 2005, the courts in this largely rural part of the state have managed one of the heavier district caseloads in the country — relying in large part on help from three senior judges: James C. Fox, age 86; W. Earl Britt, age 83; and Malcolm Howard, age 75 ….“ May-Parker would have been the first African-American to serve in the Eastern District – a milestone certainly given the large black population in that part of the state and the otherwise all-white and overwhelmingly male composition of the federal district courts there.

“But U.S. Senator Richard Burr, who for years took his senate colleagues to task for holding up judicial nominations, inexplicably blocked that nomination by refusing to submit the ‘blue slip’ evidencing his support – a critical step to moving a judicial candidate to a senate hearing.”

Burr’s blockade of May-Parker was rendered all the more outrageous by the fact that he literally refused to explain it. When cornered by a reporter more than two years ago on the matter, Burr simply refused to talk, saying: “I don’t talk about any recommendations I make to the White House. All my conversations are with them …. I just don’t share anything about the judicial nominations process.”

Now, thanks to Burr and several other senators of the Right, it looks like all Americans can look forward to the kind of dysfunction on the U.S. .Supreme Court that has afflicted the Eastern District of North Carolina for years.

Tillis tries to have it both ways

The one thing that can be said about Burr’s outrageous and destructive stance is that, at least, it has been unmistakably clear. The same cannot be said for the position of Burr’s colleague, Thom Tillis.

Last week, some observers credited Tillis for being among the first GOP senators to disavow Burr’s brand of blanket obstructionism. As was noted in this post on The Progressive Pulse, however, Tillis’ position differs from Burr’s only in tone, not substance.

First of all, though he says he’s open to a presidential nomination, Tillis says he will “use every device available” to block it unless Obama, effectively, submits the second coming of Scalia. And second, Tillis has done absolutely nothing during his tenure in Washington – a time in which, unlike Burr, he has actually sat on the Judiciary Committee that is supposed to review all judicial nominees – to stop an ongoing GOP blockade of virtually all Obama court nominees.

The bottom line: Perhaps Tillis’ statement heralds a real change in the senator’s behavior and that of his colleagues, but given his record and absent genuine action anytime soon, it’s safe to assume that the new stance is all for show.

Going forward: Bucking public opinion

Whether Burr and Tillis will stick to their obstructionist and obstructionist-light positions is anyone’s guess, but there are growing signs that they may risk public ire by doing so. The latest Elon University poll of likely North Carolina voters found that 57.3 percent of likely North Carolina voters want President Obama to nominate someone now, while only 34.8 percent think he should leave it to his successor.

Like, at last count, 178 editorial boards across the nation, these average North Carolinians do not understand why officials elected to office should not simply do their jobs in the nine-plus months that stand between now and the next general election. It is a thoroughly reasonable and understandable position. Let’s hope Senators Burr and Tillis wake up to this reality soon.

Find Sen. Richard Burr’s official statement at http://www.burr.senate.gov/press/releases/statement-on-the-death-of-supreme-court-justice-antonin-scalia-.

Rob Schofield, director of research at N.C. Policy Watch, has three decades of experience as a lawyer, lobbyist, writer, commentator and trainer. At N.C. Policy Watch, Rob writes and edits frequent opinion pieces and blog posts, speaks to various civic groups, appears regularly on TV and radio and helps build and develop movements for change. Contact him at rob@ncpolicywatch.com or 919-861-2065. Follow him @Rob_Schofield.