From Trump to Supreme Court, a Washington torn over its rules

There's a lot of talk in Washington about people not following rules in the presidential race and the Supreme Court nomination. In a polarized environment where no one can accept losing, that's natural. 

Paul Sancya/AP
Republican presidential candidate Donald Trump speaks during a campaign rally in Boca Raton, Fla., Sunday.

It can feel like America’s political system is coming unhinged.

On Wednesday, President Obama put up a Supreme Court nominee – Merrick Garland – whom Senate Republicans plan to ignore.

Meanwhile, in the aftermath of the latest Super Tuesday elections, Donald Trump was several steps closer to a Republican presidential nomination that many members of the party establishment were plotting to actively oppose.

But a similar atmosphere of political peril – if not worse – hung over the nation in November 2000. America had voted, but the election was too close to call. Lawyers for Al Gore and George W. Bush were battling it out in a case that was headed to the Supreme Court. 

But amid that turmoil, an unexpected moment of calm came to the White House itself. Four presidents, five first ladies, and other notable guests attended an East Room celebration of the 200th birthday of “the people’s house.” Presidents from both parties spoke to the uncertainty, but they also pointed to a way out of the mess.

“It will be resolved in a way consistent with the vitality of our enduring Constitution and laws,” outgoing President Bill Clinton assured the guests at the candlelit celebration 16 years ago. 

Put simply, Americans needed to trust the process.

Washington is now heatedly debating whether politicians – from the president to members of Congress to Donald Trump – are willing to do that. 

By not even holding hearings on the Supreme Court nominee, say Democrats, Republicans are failing to fulfill their constitutional duty. 

By insisting that a GOP convention make the leading candidate the nominee even if he falls short of the delegate total by then, Mr. Trump is going against convention rules, others point out. 

Still others warn against Republicans trying to game the system to keep Trump out. 

That's not to mention the broader issue of whether President Obama is violating the Constitution with executive “overreach.” The Supreme Court is looking at that very question as it relates to Mr. Obama’s executive action on immigration in 2014.

“The more polarized the environment, the less people are concerned about process and the more they are concerned about winning,” says John Pitney, a congressional expert and political scientist at Claremont McKenna College in Claremont, Calif. 

How might it look if “the rules” were followed as demanded on some of these hot-button issues?

If hearings were held on Supreme Court nominee Garland, he would have a “reasonable chance” of being confirmed, if only because of the politics of it, Professor Pitney says. Garland is not a conservative choice, but if Hillary Clinton is the next president, she may nominate a much more liberal judge.

Indeed, “if the election doesn’t go the way Republicans want it, there will be a lot of people open” to moving on a nominee in the lame-duck session, said Sen. Jeff Flake (R) of Arizona, as reporters mobbed him in a basement hallway Wednesday. Senator Flake is a member of the Senate Judiciary Committee. Its chairman, Charles Grassley (R) of Iowa, has been adamant that the process will wait for a new president.

As for Trump, arriving at the nominating convention in Cleveland short of the required delegate count – a real possibility now that he’s lost Ohio to competitor John Kasich – could activate a set of party rules that would likely result in a “multi-ballot, no-holds barred convention,” writes Benjamin Ginsberg in Politico

A new convention rule binds more than 90 percent of delegates to specific candidates on the first ballot – leaving the front-runner in the position of having to convince the uncommitted. That’s what Gerald Ford did at the 1976 convention. 

If that didn’t work, all bets would be off for the Donald. In a second ballot, nearly three-quarters of the delegates are released from their obligations. More become released in subsequent ballots and current rules do not require the candidate with the fewest delegates to quit.

“By the Trump rule,” says Pitney, “Abe Lincoln would never have become president. William Seward would have been president.” He’s referring to the convention of 1860 that went to multiple ballots.

Life in Washington would be much more productive if everyone returned to regular order – or followed the rules – says Pitney. It ensures order and fairness, he says, even if, as in the Supreme Court decision on the 2000 election, half the country may well be upset with the outcome.

Still, that is the reason for rules in the first place. As Princeton University historian Julian Zelizer writes in an e-mail: “When the passions and tensions that inevitably arise in a democracy emerge, there are formal rules in place that must be followed [to] preserve the basic framework of our system.”

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