Obstructionism is terrible governance
Mitch McConnell and other Republican senators should do their jobs
As an entrepreneur and investor, I prioritize construction and collaboration. Whether it’s a five-person start-up or a global giant, the companies that are most productive are the ones whose employees operate with a shared sense of purpose and a clear set of policies for responding to changing conditions and new opportunities.
That’s why I’m so appalled by what’s happening in the Senate this year, and how starkly it illustrates the differences between Silicon Valley and Washington, DC.
Just hours after Supreme Court Justice Antonin Scalia unexpectedly died in February, Senate Majority Leader Mitch McConnell told the American people not to expect a replacement any time soon. The vacancy created by Justice Scalia’s passing, McConnell insisted, “should not be filled until we have a new president.”
Since then, Leader McConnell’s position has remained unchanged — he won’t even meet with any nominee until January 2017. Effectively, he and his allies are in the midst of a year-long strike.
Imagine if entire departments at Fortune 500 companies announced they were going to stop performing key functions of their job for a year or more, with no possibility of moving forward until a new CEO took over. Investors would start dumping their stock. Customers would seek out alternatives. Competitors would make these companies pay for such dysfunctional gridlock. Eventually executives and employees would be fired.
In Silicon Valley, such behavior would be corporate suicide. In Washington, DC, it’s business as usual.
So Mitch McConnell’s strike goes on and on — he refuses to even meet with any nominee until a new president takes office. Other senators like Richard Burr (R — NC), Sen. Chuck Grassley (R-IA), and Rob Portman (R — OH) have followed McConnell’s lead, either refusing to even informally meet with Judge Garland, or meeting but still reflexively insisting that a formal Senate hearing is not an option.
But the Constitution does not give the job of nominating and appointing Supreme Court Justices to the next President — it gives it to the current one.
Respecting the Constitution’s authority and the obligations of his job, President Obama nominated a potential replacement for Justice Scalia, Judge Merrick Garland, on March 16.
To date, only two Republican senators — Senator Mark Kirk (R — IL) and Susan Collins (R — ME) — have resisted peer pressure and publicly stated that Judge Garland should be given a formal hearing. The rest are joining McConnell in his strike.
In a 2013 op-ed, New York Times columnist Thomas L. Friedman explored the difference between Silicon Valley’s conception of collaboration and Washington, DC’s. In the nation’s capital, Friedman observed, collaboration “is an act of treason — something you do when you cross over and vote with the other party.” In Silicon Valley, companies that are “trying to kill each other in one market [are] working together in another — to better serve customers.”
As Friedman went on to explain, Silicon Valley’s version of collaboration doesn’t mean groupthink or lockstep consensus. Vital organizations and industries cultivate diverse and competitive viewpoints, because it’s this very “clash of ideas” that tends to produce innovation and adaptation.
But Silicon Valley situates its clash of ideas within a larger framework of cooperation and compromise, under the premise that what’s good for the ecosystem as a whole will also benefit individual players, even if they sometimes have competing interests.
What’s striking about McConnell’s stance is how vividly it illustrates DC’s preference for reflexive obstruction over the kind of collaboration and consensus-building that characterizes healthy and productive organizations.
It’s not as if the Constitution doesn’t give senators like McConnell broad room in which to operate in dissenting fashion. Specifically, Article II, Section 2 of the Constitution invests the President with the power to make appointments “by and with the advice and consent of the Senate.”
This language clearly gives the Senate a confirming but open-ended role. It doesn’t instruct the Senate to hold hearing within a specific number of days, for example. It doesn’t even explicitly mandate that the Senate must hold formal hearings or meet with a nominee.
The Constitution simply directs the Senate to advise the President in his effort to nominate and appoint nominees. But how can the Senate credibly and effectively fulfill this obligation without making any effort to gather information about nominees and deliberate on their qualifications?
In keeping the language so broad in this instance, the Constitution effectively places the Senate in far more than a rubber-stamping role. As Barack Obama himself suggested in 2006, when he was still a senator, the Senate arguably has the authority to examine a nominee’s “philosophy, ideology, and record,” not just his general character.
What Article II, Section 2 ultimately does, in other words, is set the stage for clashes of ideas, albeit within a larger framework of collaboration and consensus. Importantly, the Constitution advises the Senate to work “with” the President, not “against” him or in opposition to him.
And it presumes that the Senate will indeed be working.
Still, instead of holding hearings in which to assess Judge Garland’s suitability for the Court, McConnell and his colleagues are doing nothing.
If their obstructionism goes unchecked, it will continue harming American citizens in very tangible ways. Having only eight Justices on the bench increases the possibility of a deadlock.
When cases end in deadlock, nothing gets decided. Resources are expended, and the American public is left hanging until the Court can hear the case again or consider another case with similar issues.
This has happened twice already — last week when the Court deadlocked on an immigration reform case, and in March, in a case regarding whether individuals should be required to guarantee their spouses’ loans. Traditionally, laws regarding this practice have differed in various parts of the country, creating confusion for small business owners and their spouses about what their obligations are. Unfortunately, this confusion and lack of clarity will persist indefinitely because of the Court’s deadlock.
What would happen if President Obama told Congress not to bother passing any more bills this year, because he had decided he would automatically veto any of them that made it to his desk? How many private sector organizations would tolerate personnel who refuse to perform key job responsibilities until the current boss is replaced by someone new?
According to Gallup, 84 percent of Americans disapprove of the way Congress is doing its job. Or perhaps more accurately, not doing its job.
Indeed, from 1900 through 1980, it took the Senate a median of 17 days after nomination to confirm or reject a Supreme Court nominee.
Like today’s senators, those senators took an oath to support the Constitution and “faithfully discharge the duties of [their] office.”
Now, however, scorched-earth partisanship has thoroughly compromised Congress’s ability to operate functionally. More than 100 days have passed since President Obama nominated Judge Garland — and there aren’t even any plans to begin hearings yet.
No wonder so many Americans believe our government is severely broken.
If we truly want to make Congress a collaborative enterprise that efficiently works in the interests of the American people, the American people must apply pressure directly to senators like McConnell, Burr, and Portman.
While some people might insist that these senators are simply fighting partisanship with partisanship, blocking a nominee that a Democrat president is trying to force upon American voters without their say, that’s a false equivalency.
President Obama is a democratically elected official, faithfully discharging the duties of his office. In democracies, we aren’t always governed by the people or the parties that we voted for. But when officials are elected, we must respect their authority, as long as they’re exercising that authority within the bounds of whatever regulatory frameworks are in place to guide them. (In this case, it’s the Constitution.)
Every American citizen should understand this. And our elected officials shouldn’t just understand this — they should be setting an example that all Americans can follow.
Instead, McConnell and his colleagues are doing the opposite.
Ultimately, they’re not telling President Obama that they don’t think his nominee is a good one. They’re saying that they refuse to acknowledge President Obama’s legitimacy as an elected official.
This kind of partisanship is endemic in Washington, DC now. But this latest behavior is such an egregious example of Congressional dysfunction that Senator McConnell and his colleagues must be held accountable.
That’s why I have signed this Change.org petition urging McConnell to give Judge Garland a hearing, and why I strongly encourage others to join me.
Our elected officials must understand that we, the American people, expect them to perform the duties of their office, even when that means working with other elected officials from different parties.
They must understand that we’re fed up with business as usual in Washington, DC. They must understand that we want leaders who look for opportunities to collaborate and work together productively, instead of pursuing obstructionism that serves political parties rather than citizens.
So let Mitch McConnell know that it’s time to quit abdicating around. Tell him to do his job and schedule a hearing for Judge Merrick Garland now.