Filling the vacancy left on the Supreme Court by the death of Associate Justice Antonin Scalia in February continues to boil beneath the surface as many of the twenty-four Republican senators up for reelection this year heard from their constituents during the two week Easter spring break regarding their refusal to provide advice & consent (i.e., confirmation hearings & a vote) regarding any of BO's nominees to the Supreme Court starting with Judge Merrick Garland – the current chief judge of the U.S. Court Of Appeals for the District Of Columbia circuit, a previously vetted, congressionally approved, & reportedly eminently qualified individual for a Supreme Court position.
Senate Majority Leader Mitch McConnell showed his party's hand, & how much the Supreme Court has been politicized, immediately upon learning of Scalia's death saying "the American people need to weigh in & decide who's going to make this decision – not this lame duck president on the way out the door, but the next president next year." By McConnell's logic we should only have the one third of senators who are elected in 2016 advise & provide consent for any nominees of the new president.
Now if there ever was a case of being careful what you ask for this is it – if you take McConnell literally the chances of the next president being Hillary Clinton or Bernie Sanders making the nomination to a Senate with a Democrat majority is very high.
McConnell bases his decision not to advise or provide consent regarding Supreme Court nominations this year based on what he calls the "Biden Rule" – a statement by current V.P. Joe Biden in a June 1992 speech in which the then Judiciary Committee Chairman spoke about not filling a hypothetical Supreme Court vacancy in George H. W. Bush's final year in office. Biden's comments do not establish a formal or informal rule & certainly do not replace the Constitution on this matter so McConnell is way out on a thin limb with his position which includes not even meeting with BO's nominees.
Republicans currently are in the majority 54 to 46 in the Senate. In addition to six closely contested races - Rob Portman (OH), Pat Toomey (PA), Ron Johnson (WI), Kelly Ayotte (NH), Mark Kirk (IL), & John McCain (AZ) – Marco Rubio leaves an open Senate seat in Florida for Republicans to defend & 82 year old Senate Judiciary Committee Chairman Chuck Grassley (IA) has been targeted by Democrats because of his reluctance to hold hearings on BO's Supreme Court nominees. In short Republicans are not in an enviable position for holding the Senate majority.
Illinois Senator Kirk was the first Republican senator to break ranks with McConnell by meeting with Judge Garland & fifteen other Republican senators have also agreed to do the same so just under a third of the Republican caucus are not standing strong with their leadership's erroneous position. These sixteen senators are not relying on the Biden Rule & certainly have not mentioned the Constitution as they try to move BO's nominees forward. Their actions despicably show that all they are doing is following whatever path they think will get them reelected – if we let them.
The first prominent Supreme Court decision after Scalia's death involved forced union dues & it resulted in a 4 to 4 tie meaning the lower court ruling stands. As a result public-sector unions preserved compulsory union dues being forced on public employees whether or not the employees choose to join the union. Scalia's record & certain vote in this case would obviously have been against such First Amendment offenses to liberty & based on his record it is with equal certainty that Garland would have broken the tie siding with the Ginsburg statists. In summary with Scalia the forced union dues case would have been overturned & with Garland it would stand. This is an example of what will be @ stake with this Supreme Court nominee.
Now I am as big an admirer of Justice Scalia as you can find & have been concerned about the sway of the Supreme Court for years. Even before his death Scalia was elderly – & so is Kennedy. If a Democrat president replaced both of them the Court would have swung to a 6 to 3 statist majority with turncoat Roberts being one of the three – hardly reassuring that anything good would come from the Judiciary Branch with this make-up of justices. Accordingly, virtually anyone who replaces Scalia would move the Court to the left & with the current make-up of the Court Judge Garland would certainly be the reliable fifth statist vote even without the defection of Roberts or Kennedy.
But I am a bigger supporter & defender of the Constitution than I am an admirer of Scalia – just the way the great Justice would want.
The Constitution's Appointments Claus - Article II, Section 2, Claus 2 states "The President shall nominate, & by & with the Advice & Consent of the Senate, shall appoint . . . Judges of the supreme Court ."
A simple reading of the above Claus as well as a study of debates among the writers of the Constitution confirm that BO has plenary power to nominate Judges to the supreme Court – like he did with Garland. Accordingly, the Senate has the plenary authority to reject or confirm the nominee – not to delay or reject out of hand the nominee which is providing no advice or consent regarding the nominee. And of course the final step of appointment, that is separated in the Appointments Claus by a comma & a conjunction, can only come after the Senate acts.
The Constitution is clear – McConnell does not have a leg to stand on by waiting for the next president to make a nomination.
The advantage this incident does provide McConnell & the Senate he leads is a forum to use BO's nominations as an excellent election opportunity (both presidential & senatorial) to point out example after example of how BO's nominees' records would hurt America – like in the union case described above. Any Senate denial should include a clear explanation why the nominee would be unsuitable – 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 Supreme court of public opinion.
Article III of the Constitution established a supreme Court (now known as the Supreme Court) & inferior Courts but left it to Congress to decide how many justices would make up the Court - the Judiciary Act of 1789 set the number @ six, all nominated by George Washington the day the Act passed into law. All were confirmed by the Senate. In 1807, Congress increased the number of justices to seven; in 1837, the number was increased to nine; & in 1863, it rose to ten. In 1866 it dropped to seven & in 1869 Congress raised the number of justices to nine – where it has remained ever since.
Jimmy Carter is the only modern day President who did not make a Supreme Court appointment. John Tyler made nine nominations during his four years in office & only one of them was confirmed by the Senate so that in addition to the clear reading of the Constitution there is precedent for McConnell to proceed as described above.
But after so many let downs over the past several years McConnell (& House Speaker Paul Ryan) would like to deliver a stand tough fighting message for conservatives to get behind – no matter how losing the message is. To my dismay the conservatives don't care about the Constitution in this matter & are more than happy to resort to central authority (i.e., Republican control of the Senate), just like the Democrats always resort to central authority, because it serves their purpose of temporarily blocking a Democrat Supreme Court nominee.
Establishment Republicans have put aside the Constitution & any principles @ all & that is how we have come to vote for the lesser of two evils in far too many elections. The ineffectiveness of the Republican Party can best be shown by looking @ the defeat of Romney – a successful businessman who lost the presidency to the biggest enemy the country has ever known in what should have been a gimmee election. Now Romney reappears & is leading a campaign against Trump in Wisconsin & every other state thereby helping to ensure Hillary Clinton or Bernie Sanders wins the presidency.
But getting back to the nomination of Merrick Garland. This post opened by saying that Garland was "reportedly eminently qualified . . . for a Supreme Court position." Well in fact students of the Constitution know there are no specific qualifications to be on the Supreme Court – not age, education, profession, native-born citizenship or anything else.
But there is something that is necessary before a justice can be seated on the Court – & it is found in the two oaths that prospective Supreme Court justices must make – that condition is to support & defend the Constitution meaning the Constitution as written – the one you can hold in your hand & read & understand the God given liberties America was founded upon - not as a living document that can be interpreted any old way @ all that suits some political purpose. By this standard Judge Garland is not qualified to be a Supreme Court justice & Mitch McConnell can not make that clear fast enough to suit me.
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