Supreme Court Vacancy Analysis

Upon becoming a national figure in the mid 2000s BO made some early mistakes in his execution of Saul Alinsky's Rules For Radicals as the doctrine pertained to seeking the presidency; namely, BO was questioned about not placing his hand over his heart during the playing of the Star Spangled Banner & he got into a controversy about not wearing an American flag lapel pin on his jacket.  These petty things made some of us take notice – an Alinsky no-no in which the goal of the doctrine is to keep focused on transferring wealth from the "haves" to the "have-nots" especially in exchange for votes thereby leaving the middle class needier & more & more dejected rather than showing your true feelings re lapel pins.

 

For more on the hand over the heart mistake see photo below of a campaign event in Iowa in October, 2007 & click here to see a video that shows much more than the photograph.    

 

click on photo to enlarge

 

Enemies of America are easily identified when they burn the American flag.  The late Christopher Hitchens had a more subtle patriotism test – mailing an envelope with a stamp that includes the outline of the American flag placed on the envelope upside down marked you as a enemy of America to Hitch.

 

Of course BO learned to place his hand over his heart & wear the lapel pin which is much more in line with his Alinsky Method training of looking the part of being on the side of the people he is trying to betray & deceive. 

 

So now when BO decided not to attend the funeral of Supreme Court Associate Justice Antonin Scalia many people, including me, thought that he was returning to the early petty stuff that had initially marked his hatred for America. 

 

Come to find out many Presidents & VPs have not attended funerals of justices of the Supreme Court.  But after all of BO's more substantive atrocities against America described on RTE the past seven years it seemed reasonable to think a spite, that BO could not resist, to Scalia & all his service was in play.

 

BO supposedly spent the time of the funeral looking @ records & job histories for Scalia's replacement which brings up the next point of tension between BO & the Senate – whether or not BO has the "right" to nominate a replacement justice with only eleven months left in his term & eight months before the November presidential election.  Republicans say no – that the new President should be the one to select the replacement justice so the American people will have a direct voice in the selection, as if they don't now through BO's election - & of course BO cites his duty under the Constitution to make the nomination himself.  It is always so pathetic when BO, Pelosi, or Ringside Reid quote the Constitution to back up their position.

 

Republicans like Ted Cruz also point out that it has been eighty years since a President made a Supreme Court nomination in an election year which may be true but is irrelevant. Forty-nine Supreme Court justices have died while on the bench & sixteen Presidents have submitted nominees during election years.  Source McGinty, The Numbers, February 20, 2016.

 

Democrats feel that BO should nominate the next justice but when the shoe was on the other foot (i.e., the parties' positions were reversed) Democrat Senators Schumer, Reid, & Biden (now VP) all independently stated that the Senate should not act on a nominee in an election year, with a sitting Republican President, thereby showing how much the Court has been politicized.

 

It is times like this that makes every politician turn to the Constitution – especially if they feel the Constitution will support their position.  Accordingly, the New York Sun studied this matter & found that the President, except insofar as the President is also a citizen, does not have any "rights" under the Constitution @ all.  The Sun found that not once in the 15 times that the word "right" was used in the Constitution did it apply to the presidency.  The President has constitutional duties which in this case reads "he shall nominate, & by & with the Advice & Consent of the Senate, shall appoint . . . Judges of the supreme Court" – Appointments Claus, Article II, Section 2, Claus 2.

 

BO senses his usual position of power over Republicans, many of whom are fearing more & more every day they will wind up looking unreasonable by rejecting virtually sight unseen any & every nominee BO puts forth – especially if this process keeps up for almost a year. 

 

But nevertheless the Republican leadership (Mitch McConnell – KY) has decided not to hold Judiciary Committee confirmation hearings for any of BO's nominees even going so far as to say they would not even meet with a nominee for what has become a routine round of courtesy calls.  This position is much more pleasing to the conservative base who would like to see some fight instead of rolling over.  

 

Accordingly, the court nomination will not only be a big determinant in the presidential election but also in the 2016 Senate races where 24 Republican seats expire versus 10 Democrat seats.  In particular the following Republican senators face tough challenges – Rob Portman (OH), Pat Toomey (PA), Ron Johnson (WI), Kelly Ayotte (NH), Mark Kirk (IL), John McCain (AZ).  Republicans currently are in the majority 54 to 46 meaning that if Republicans get clumsy a Democrat President with a Democrat Senate is very possible in January 2017 just based on the numbers in play.

 

Earlier this week one of the longest subscribers to RTE sent me the following comment/question - "Not sure, the Senate must not shut down for any vacation until the next president takes office or the worst Supreme Court justice will be appointed?"

 

Of course our subscriber is referring to a recess appointment – "The President shall have the Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire @ the End of their next Session" - Recess Appointments Claus, Article II, Section 2, Claus 3. 

 

Many readers will remember that John Bolton was a recess appointment of GW Bush - U.S. ambassador to the UN from August 2005 until December 2006.  Bolton resigned in December 2006 (the end of the next Senate session) because he was unlikely to be confirmed.  It is the Bolton recess appointment that produced many hard feelings & makes recess appointments in general so contentious today.

 

If the Scalia replacement matter is not resolved amicably by January 3, 2017 the chance of a dirty trick increases.  There will be no Senate in session for the very brief period of time that the current session ends & before senators take the oath of office for the next session of Congress.  This could be strategically played out in BO's favor – who leaves office 17 days later – to make such a recess appointment.  Now if a Dem wins the presidency & Dems win a majority of the Senate BO may not do this because this recess appointment, if it is allowed, would only last until January 3, 2018.  BO holds the trump card either way – no pun intended.

 

But there is more than political gamesmanship involved in all this – there is a legal aspect of leaving a four to four Supreme Court in place.  Namely all lower court decisions will stand in deadlocked Supreme Court decisions – meaning Republicans will win some decisions & Democrats will win some based on the existing rulings of the lower courts.  The biggest problem with all of this is not that the lower court's ruling will stand but that the same law will mean different things in different parts of the country if one lower court ruled one way & another lower court in a different part of the country ruled another way – this is one of the reasons the Supreme Court takes up cases: when lower courts, each with jurisdictions over different parts of the country, reach different decisions.

 

For instance, there is an abortion case that comes before the Supreme Court in March that involves admitting-privilege requirements for abortion clinics.  A lower court in the south upheld the law in question while a Midwest lower court struck down a similar law meaning a 4 to 4 deadlocked Supreme Court means these two sections of the country will operate under different legal standards for the foreseeable future.

 

Antonin Scalia once shuddered @ the thought of BO replacing him but Scalia advocated originalism in constitutional interpretation & the constitutional process is that the President nominates & the Senate confirms or denies each Supreme Court nominee.  What is wrong with that process that the Republicans can't live with?  They should stop making noise & we should ignore the noise regarding rights, precedents, & election year nominating traditions.  In fact, any denial should include a clear explanation why the nominee was denied – if done eloquently the explanation could persuade voters that the nominee would indeed be harmful to the country thereby helping turn the election away from Democrats.  This seems a far superior approach than the confrontational approaches Republicans keep making – confrontations BO has always won in the court of public opinion.

 

BTW – Republicans should be careful what they ask for regarding their making Supreme Court appointments.  Five of the seven justices who voted for their own views on abortion in the 1973 Roe v. Wade case were appointed by Republican presidents.  Anthony Kennedy, appointed by President Reagan, was the deciding vote making homosexual marriage the law of the land according to the Supreme Court, & John Roberts who was appointed Chief Justice by GW Bush was the deciding vote in two awful ObamaCare cases.

 

Reference Post:  The Hidden Danger Of Republican Reliance On The Courts