On the High Court Truth … and Nothing but the Truth

Non-US readers, please excuse me because I’m tired of reading and hearing the repeated crap, it’s time to tackle many of the partisan hacks.

Supreme Court Justice Antonin Scalia’s death on 13 February 2016 created an opening on the US Supreme Court. About a month later (16 March), President Obama nominated Merrick Garland as Justice Scalia’s successor. Two months since the nomination, the US Senate and its Judicial Committee have done nothing to advance the process, plus presidential candidates have made the vacancy a campaign issue. It’s time to destroy the cover.

1) Republicans proclaim the “Biden Rule” as their key rationale – a term they developed based on a speech Vice President (then Senator) Joe Biden made in 1992 (which was a presidential election year. TRUE, but the rest of the story…

  • a) As chair of the Judicial Committee, Biden did deliver a speech on 25 June 1992, a time between the conclusion of the last primary and the first party convention … whereas at the time of Scalia’s death, 1 caucus and 1 primary had been completed – therefore, many primaries and caucuses lie ahead.
  • b) At the time of Biden’s speech, there were no vacancies on the high court and no upcoming resignations … plus, no vacancies occurred during the election phase or during the lame-duck time between Election Day and Inauguration Day.
  • c) Biden stated that IF a vacancy would occur, he wouldn’t hold a hearing during the conventions and the contentious campaign, so President GHW Bush should delay a nomination until after the election and confirmation process would take proceed after the Senate reconvenes following the election (during the “lame duck” session).

2) Current Republican language of “Let the people decide” suggests the nomination should be left up to the next president and the next Senate – and the Biden Rule is the common rationale. WRONG.

  • a) Letting the next president decide was not the motive and never a suggestion by Mr. Biden.
  • b) The Constitution (Article 2) acts as the will of the people by granting explicit powers to the president to nominate and to the Senate for advise and consent.
  • c) The people had already decided by electing President Obama in 2012.

3) President Obama (when a senator) helped filibuster the nomination of Samuel Alito in 2006. WRONG.

  • a) Although Sen. Obama favored a filibuster, such a vote within the Democratic caucus didn’t occur because there weren’t enough votes for the filibuster.
  • b) In other words, the filibuster of Justice Alito never occurred.

4) On 27 July 2007, 19 months before the end of President GW Bush’s term (in a speech to a legal organization), Sen. Chuck Schumer (D-NY) said, “We should not confirm any Bush nominee to the Supreme Court, except in extraordinary circumstances.” TRUE, but the rest of the story…

  • a) Sen. Schumer’s view is a partisan view that is very similar to the Republican position today.
  • b) I disagree with Sen. Schumer then, an in my opinion, he was wrong. Besides, two wrongs don’t make a right.
  • c) Sen. Schumer’s statement did not block any further nominations.

5) Republicans support the delay because they claim a nomination by President Obama would “shift in the Court”. TRUE, but the rest of the story…

  • a) The same people complaining about a possible shift in the court today were favoring a shift in the court in 2006 when conservative nominee Samuel Alito was replacing a moderate swing vote (Justice Sandra Day O’Connor).
  • b) For the record, Justice Alito’s process from nomination to confirmation took 3 months.
  • c) This is another example of partisans favoring a court to impose their view upon society instead of favoring a court for all Americans.

6) Sen. McConnell (R-KY and Senate Majority Leader) reasoned that Republicans are justified in delaying the nomination because Americans (in 2010) voted to give Republicans control of the Senate. True, but the rest of the story…

  • a) One third of the Senate seats (selected by voters in 33 states) determined the outcome – not all Americans.
  • b) The Constitution clearly states the role of a duly elected president, which starts from the moment he/she takes office until the time a successor is inaugurated. In this case, all Americans duly elected President Obama in 2012 and inaugurated him January 2013 in order to serve until Inauguration Day 2017.

7) Republicans use phrases as “We owe it to him (Scalia).” Let’s examine the statement …

  • a) Interesting, Justice Scalia proudly proclaimed his judicial philosophy to base ruling on the Constitution’s original intent.
  • b) Based on the Constitution’s text, it difficult to believe that Justice Scalia’s originalist view would approve that blatant partisan action is Constitutionally justified.
    Justice Scalia would also refer to the Federalist Papers, especially #10 written by James Madison (Founding Father and key architect of the Constitution) – where Madison counters the “mortal disease” effects of partisan factions.

8) Some Republicans state the delay is following “tradition” or “bipartisan practice” regarding vacancies during an election. Others proclaim President Obama is breaking practice by nominating a justice during an election year. WRONG.

  • a) Note: Supreme Court vacancies during a presidential election year are rare.
  • b) Presidents Hoover (1932), President Roosevelt (1940), and President Eisenhower (1956) nominated justices during election years who were confirmed.
  • c) President Reagan nominated of current justice Anthony Kennedy on 30 November 1987, whom the Senate confirmed the 1st week of February (days before the New Hampshire Primary).

9) NOTE: The Pew Research Center reported that of the 10 longest vacancies on the Supreme Court, 9 of 10 were in the 1800s – of which 6 occurred between 1842-1874 (time preceding and following the Civil War). The lone exception being Judge Henry Blackman on June 9, 1970. Since then, the average duration of vacancies has been 55 days.

10) NOTE: Let us not forget that within hours of Justice Scalia’s sudden, and before proclaiming any of the above reasons, and instead of praising Justice Scalia’s tenure, both Senate Majority Leader McConnell and current Senate Judiciary Committee Chairman Chuck Grassley (R-IA) issued strong statements about delaying the confirmation process.

11) NOTE: Possibly the only point Republicans did get right is that the on Constitution states the Senate involvement and duty, but does not provide a time-frame or how their decision-making process should proceed. Besides, Section 5 does provide the Senate the power “to determine the Rules of its Proceedings.”

My Final Thoughts
Hyper-partisanship purposely delivers a message of partisan constituents who probably get their news from a new organization that reports the message listeners want to hear. This repeating sound of partisan drivel resembles an echo chamber – that is repeating sounds where competing views are disallowed or (at best) under-representative. This information serves as the Kool Aid of choice so the partisans repeat what they perceive as resounding joy while actually displaying a profound ignorance.

Although a discussion of the question regarding a Supreme Court opening in an election year may be a worthy discussion, answers to pertinent questions are debatable, but the partisans will take the stances that are most beneficial to them at the time. However, Republicans do not have a corner on that market.

In this case, the Senate has an “advise and consent” role on behalf of the American people. Because of deliberate actions by Republicans, the Senate is miserably failing in its duties, and the reason is simple – acting for the benefit of party over doing their duty for the people.

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31 thoughts on “On the High Court Truth … and Nothing but the Truth

    • Amy,
      Thanks … but I favor this being read by citizens because listening to people talk or reading a letter to the editor, so many simply repeat what they politicians or talking heads say! … and it’s those comments that sparked this post.

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  1. Well done Frank! The combination of your research, passion for the issue, and talent for synopsis, is why I include your blog in my daily reading. I agree that Justice Scalia would have been completely opposed to delaying the nomination hearings for his replacement. Also please share which are your preferred media venues (TV, radio, print, online) for non-partisan (as much as possible) reporting and analysis of the news. More and more I’m avoiding the cable networks and tuning in PBS TV (especially the three C-SPAN stations) and radio for my news and education on the issues.

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  2. Great summary, Frank!
    But as to “we owe it to Scalia”, I’m not sure he’d disagree with the Republican leadership – his “originalist” reading of the Constitution tended to neatly match the Republican position on most issues.

    Liked by 1 person

    • X,
      Thanks for the kind words. In terms of Scalia, it would be interesting (to me) to know how he would reconcile the differences the Constitution states – that is, the stated responsibility of the President & Senate vs. the lack of timeline. Then again, he may the cited Federalist Paper totally different (if at all).

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  3. Great analysis and understandable presentation of the facts! Unfortunately, it seems to me that the only way this prolonged vacancy will be filled before 2017 would be:

    1) Congress gets embarrassed and decides to act in the best interest of the country (likelihood: 5%)
    2) [Mostly Republican] constituents get angry and put fire under their congressmen to act (likelihood: 10%)
    3) Obama finds some way to do what he wants without congressional approval (likelihood: 10%)
    4) Melisandre does a “Jon Snow” and brings Scalia back from the dead (likelihood: 5%)

    Overall, I can’t say I’d place my money on anything happening. I think you pinned the tail on the donkey (so to speak) when you cited the echo chamber issue, which has the effect of making opinions feel like facts, and differing opinions the Irrational Enemy.

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    • Alisha,
      Your odds made me laugh. There is the possibility the Republicans are waiting on the election results. For instance, the worst possible scenario (for them) would be Dems winning the White House and the Senate majority … thus the situation where the current nominee would be a better choice than the unknown of the future. Meanwhile, I just had to set the record straight.

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  4. Well done, Frank.
    I disagree about #6, though, Frank. While he Supreme Court comes up as a reason to vote for president, it’s rarely a consideration in Senate elections, which as you pointed out, only represents 1/3 of the whole Senate.

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  5. Fine piece of research and journalistic blogism! Bravo!

    The problem with this piece is that it is too logical and too long–not sound-byte-ish and glitzified enough for today’s info-consumer. :0

    The problem for our country? People see our current politicians for the blatent partisan egomaniacs that they have become and enough of the voters are ready for a “real change” at any cost. Enter the Bloviator in Chief with his Trumpeting Minions… 😦

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    • Lorna,
      The length was do to the number of “reasons” that people used. But (as you probably noticed) I kept the rebuttals short and too the point.

      Yes, politicians are not only blatant partisans, they are also playing to the blatant partisan supports who take what is said on face value and the absolute truth. Plus, the public doesn’t research the comments … hence, the purpose of this post.

      As far as The Bloviator, I say keep him doing what he does best … and that’s talking.

      Like

    • Val,
      Thanks for the kind words. Image how party-driven the agenda would be if one party controlled the White House and both Congressional chambers. Given the ugly climate, I hope 2016’s election delivers more split power.

      Like

        • Given re-election rate of incumbents in 85-90%, definitely no small task. Voters are just as much responsible for the situation. After all, we give Congress a low approval rating, but with the “but not mine” asterisk. Nonetheless, there are interesting Senate races this fall – including one of mine. I like Rob Portman, but I will vote against him simply on the principle of his Supreme Court stance.

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