The Weiner Component #148 – Death of a Supreme Court Justice: The Ultimate Irony

English: President Barack Obama and Vice Presi...

English: President Barack Obama and Vice President Joe Biden with the members of the Supreme Court and retiring justice David Souter (Photo credit: Wikipedia)

English: The United States Supreme Court, the ...

English: The United States Supreme Court, the highest court in the United States, in 2009. Top row (left to right): Associate Justice Samuel A. Alito, Associate Justice Ruth Bader Ginsburg, Associate Justice Stephen G. Breyer, and Associate Justice Sonia Sotomayor. Bottom row (left to right): Associate Justice Anthony M. Kennedy, Associate Justice John Paul Stevens, Chief Justice John G. Roberts, Associate Justice Antonin G. Scalia, and Associate Justice Clarence Thomas. (Photo credit: Wikipedia)

photograph of the justices, cropped to show Ju...

photograph of the justices, cropped to show Justice Scalia (Photo credit: Wikipedia)

(For a more detailed discussion of the significance of the 2016 Election upon the Supreme Court see: The Weiner Component #136 Part 1, which deals with the current Supreme Court.)


With the unexpected death of 79 year old Antonin Scalia a strange and dynamic situation exists on the Supreme Court.  Judge Scalia was probably the most conservative member of the Court.  His death, from a heart attack, neutralizes a Conservative Court.  There are currently four liberal Justices appointed by Democratic Presidents and four conservative judges on it appointed by Republican Presidents, with one vacancy.  Most of the important cases now have four conservative and four liberal votes.  A tie means the case returns to the prior decision made by a lower court.  Whoever the ninth Justice will be, would determine whether the new Court will be liberal or conservative.


President Obama has announced that he will do his Constitutional duty and choose a candidate for the court and that he hopes the Senate will do their Constitutional duty and provide “advice and consent,” that is acceptance or rejection to the individual chosen.  Mitch McConnell, the Senate majority leader, and other Republican Senators have announced that they will absolutely not hold a hearing on anyone for that position.  They have said that they want the people of the United States to choose whether the candidate should be liberal or conservative by voting for the next President to be elected.  Their assumption is that if the next President is a Republican then he will choose a conservative judge.  Actually they feel that a Republican will be elected and they can replace Scalia with another conservative and maintain conservative control of the Supreme Court.  Of course their assumption may be wrong and a Democratic President would choose a more liberal candidate.


The question here goes back to the Constitution.  On the one hand the Republicans tend to believe in a strict interpretation of the Constitution.  They believe that one should adhere to the original intent of the document.  Meanwhile the Democrats, beginning with Thomas Jefferson, the original founder of the Democratic Party, believed in a loose interpretation of the Constitution.  They would rely on the general meaning or intent of the document. 


The point to keep in mind is that the founding fathers came from both free and slave states.  They needed a document that could be agreed upon by both groups.  In fact when Thomas Jefferson, a slave holder, wrote the Declaration of Independence he, among other things, denounced the King of England for forcing slavery to be brought into the original colonies.  Benjamin Franklin edited that section out of the document.  The problems, which arose a number of times in the writing of the Constitution, was that issues arose that the two sides couldn’t agree upon.  Their solution in these cases was to get vague so that both sides could agree.  All of this would today be called compromise.  The document is a series of compromises; and the meaning of many of these has changed over the years as the conditions within the United States have changed.


In addition specific changes have been made to the Constitution by Amendments being added to it or just general historical usage.  The one major question over who was dominant, the Central Government or the State Governments was resolved by the Civil War.  Women are never mentioned in the Constitution.  It took an Amendment early in the 20th Century for them to obtain full civil rights for them and also the vote.


Today much of these arguments are nonsense.  The real question is: How would the Founding Fathers have behaved or have meant if they lived in the 21st Century?  In the instance of Antonin Scalia’s death the Republicans vie toward a loose interpretation of the Constitution and the Democrats toward a strict reading of the document.


The Constitution itself states in Article 2, Section 2, Second  paragraph:

          He (the President) shall have Power, by and with

          the Advice and Consent of the Senate, to make

          Treaties, provided two thirds of the present concur;

          and he shall nominate, and by and with the Advice

          and Consent of the Senate, shall appoint Ambassadors

          other Public Ministers and Consuls, Judges of the

          Supreme Court, and all other Officers of the United

          States. . .

The next paragraph states:

          The President shall have the power to fill up Vacancies

          that may happen during the Recess of the Senate, by

          granting Commissions which shall expire at the end of

          the next Session.


What does the Constitution actually say?  According to President Obama it can mean that he has to choose a candidate to serve on the Supreme Court as soon as he finds someone competent.  President Obama will be in office until the middle of January 2017, which is approximately eleven months from now.  According to the Senate, he is a lame duck president, who cannot be reelected, therefore he should allow the next president to choose a replacement for Scalia. 


Who’s right, according to the Constitution?  I suppose you could say, whoever wins the argument.  But a year is a long time to wait for a replacement on the Supreme Court!  A lot of decisions will not be able to be made with its current makeup by a Court divided into four liberals and four conservatives.  Also in the entire history of the Court there has never before been this long a dormant period in the nonfunctioning of the Supreme Court.  Putting the Court on hold for a year is really stretching out the Constitution.  What this does is politicize the Court according to the majority will of the Senate.


While the major issue is whether the newly constituted Supreme Court will lean toward the right or the left, there is also in the minds of most Blacks in the United States the fact that they, the Republicans, feel that Barack Obama has never been a real President to the majority of their group.  They have questioned his citizenship and his religion.  Presumably many still believe that he is neither a citizen of the United States nor a Christian. 


The bulk of the Blacks in the United States believe that no white President would have been treated as Barack Obama has been, even though he won the presidency twice by overwhelming majorities.  They feel that the issue of confirming a new Supreme Court would never have arisen with any other white president, that a good part of this issue is race prejudice.  While a good part of the Republican leadership would vehemently deny this, I do believe it is largely true.


In addition ten Republican controlled states will be placing voter restriction laws into place shortly before the 2016 Presidential Election in November.  These laws range from new hurdles to registration to cutbacks on early voting to strict voter identification requirements.  These ten states have a collective population of over 80 million people and will yield 129 of the 270 electoral votes needed to elect the next President.  The theory here being that by passing these qualifications at the last minute no law suit or any other restriction can be put on them until after the election.  There will not be enough time. 


Whether this holds true is another question.  But taken with the so-called legal voter restriction that already exists, in addition to the long lines and long periods of waiting in order to vote, taking in some cases eight hours or more, the Republican pattern is to keep Democrats from voting.


Irony is an interesting topic!  For example: the current Republicans in the United States Senate refused to allow Elizabeth Warren to become head of the new U.S. Commercial Financial Bureau which she strongly helped bring into existence.


Elizabeth Warren of Massachusetts is a legal scholar and former Harvard Law School Professor specializing in bankruptcy law and commercial law.  From 2010 – 2011, as special advisor she helped develop the U.S. Consumer Financial Protection Bureau.  In September of 2010 President Obama named Elizabeth Warren, Assistant to the President and Special Advisor to the Secretary of the Treasury on the Consumer Financial Protection Bureau to set up the new agency which had been, among numerous other things, specifically included in the new Dodd-Frank Law of 2009.  Elizabeth Warren was supposed to head the new agency as its director but was strongly opposed by Financial Institutions and Republican Senators who believed that Warren would be an overly zealous regulator.


President Obama, believing that Warren could not be confirmed, appointed Ohio Attorney General Richard Cordray in January of 2012, over the objections of Republican Senators, to the post in a recess appointment.  (The Republicans and the banks did not want anyone to head the agency.)


Elizabeth Warren went on that year to run for the Senate as the Democratic candidate from Massachusetts.  She ran against the Republican, Scott Brown, who was known as the centerfold in an issue of Playgirl magazine.  He had won his Senate seat two years earlier in a Special Election after the death of Senator Ted Kennedy.  She defeated Brown and won the election.


There was in 2015 a movement for her to run for the presidency in 2016 which she turned down.  She has been mentioned as a potential candidate for the current Supreme Court Opening. 


Elizabeth Warren is the Republican’s worst nightmare.  If they had let her head up the agency she helped bring into existence then, at least, she would have been quiet outside of her agency.  But the Republicans apparently felt that if they never confirmed anyone to head up the Consumer Protection Agency it would never function.  It is functioning and doing its job protecting American consumers. Their biggest mistake was attempting to force their will or opposition upon the President.  It didn’t work.  To them and a number of other conservatives outside of Congress they now have a strong force representing the rights not only Massachusetts but also of a lot of ordinary Americans, functioning in Congress who could conceivably run for the Presidency in 2020 or 2024.  In addition she might become the ninth Supreme Court Justice. 


This is true irony.  In essence the Republicans have set themselves up by attempting to force their will upon the President.


On Thursday the 13th of February, 79 year old Supreme Court Justice Antonin Scalia died as a guest in a luxury ranch in Cibolo Creek, Texas, of a heart attack.  His death has upset the balance on what has been a Conservative Supreme Court.  That night, during the Republican Debate of the potential candidates Donald Trump, who is currently leading the group in national popularity, stated that the Republican Senate should stall and refuse to act.  Others in the Republican Presidential Debate also indicated delay.  The consensus was that they wanted the next President to choose a Court successor.  That would be almost a year after Scalia’s death.


Later, in an ABC interview, Ted Cruz, a member of the Senate Judiciary Committee stated, “Let the election decide it.  If the Democrats want to replace the nominee, they need to win the election.” 


Marco Rubio stated that the Republican controlled Senate should ignore any nomination made by President Obama.


Mitch McConnell, the Republican majority leader in the Senate clearly said that President Obama should not try to fill the vacancy left by the death of Justice Antonin Scalia since there was less than a year left in the President’s term.  Actually there is only 11 months left.


The Democrats stated that a refusal to even consider a nominee would be an outrageous act of obstructionism.  No such case has ever existed in the entire history of the United States.  The Democrats predicted that there would be a voter backlash, particularly in swing states that the Republicans need to win in order to maintain control of the Senate after 2016.


Scalia died on Thursday, February 13, 2016.  By Wednesday the 17th of February a number of Republicans had cooled down.  For one thing they are afraid of a backlash and losing control of the Senate and for another since 1900 there have been over a half dozen instances where Presidents have appointed Supreme Court judges on election years.  One of these was President Ronald Reagan.  He filled a vacancy that occurred in 1988, his last year in office.  He first chose Robert Bork who was defeated in the Senate and then chose Anthony Kennedy who was confirmed.


President Obama said that the Republicans who call themselves strict interpreters of the Constitution were suddenly citing unwritten precedent about not confirming Justices during an election year to justify their position.  “It’s pretty hard to find that in the Constitution… The Constitution is pretty clear about what is supposed to happen now. 


Senator Charles E. Grassley, the 82 year old Iowa Republican who chairs the Judicial Committee, said Tuesday that he may be open to holding hearings on President Obama’s nominee.  “I would wait until the nominee is made before I would make any decisions…In other words, take it a step at a time,” he told radio reporters in Iowa.  Three days earlier he had insisted that the “standard practice” was to not confirm Supreme Court Judges in an election year.


Senator Thom Tillis of North Carolina warned that if fellow Republicans rejected an Obama nominee “sight unseen” they would “fall into the trap of being obstructionists.”  Republican strategists said that GOP leaders may have made a tactical error that could trigger a public backlash.


As of Monday, February 22, the Democrats were for nominating a new Supreme Court Justice and the Republicans who were totally against it earlier were then sort of against it.  By Tuesday, February 23 the Republicans had probably held a party caucus and were again definitely against the idea.  Mitch McConnell stated that “If the shoe were on the other foot, the Democrats would not approve a Republican nominee.” But they did on February 18, 1988 when President Ronald Reagan’s choice, Anthony Kennedy was confirmed for the Supreme Court.  Another Republican Senate leader stated that there was no point in Obama appointing anyone because the Senate will turn him down.  On Wednesday, February 24th President Obama responded to the Republican declaration with the statement that he will nominate a fit candidate for the vacancy on the Supreme Court.  What will happen is anyone’s guess.


If the Republicans are successful in not confirming anyone to take Scalia’s place.  After all they can hold endless hearing and conceivably vote down all the possible candidates.  It could happen with everyone President Obama nominates then I would suggest an interesting alternative.


The probability is that the Democrats being the majority party will win the Presidential election, especially after these shenanigans and either Hillary Rodham Clinton or Bernie Sanders will be the next President of the United States.  It will then be the job of one of them to nominate a candidate for the open position on the Supreme Court. 


In addition it is also probably that the Senate will return to Democratic leadership.  There is a total of 100 Senators, two from each of the 50 states.  Of these currently there are 54 Republicans, 46 Democrats, and 2 independents who caucus with the Democrats.  In the November 8, 2016 election 1/3 of the Senate seats will be up for election.  A number of these are in swing states.  There the election could go any way.  The probability is that the Democrats will again take control of the Senate.  It seems that a lot more people come out to vote in Presidential Elections; this has historically tended to benefit the Democrats.  In nonpresidential elections more people tend to stay home and this has benefited the Republicans.


It is very possible, if the Republicans are successful in forestalling the Supreme Court appointment until after mid-January of 2017 when the new president takes office that the new incoming Democratic President will appoint an attorney who has taught Constitutional Law and is well experienced in the current problems of the United States.  And that would be Barack Obama, who would then have become unemployed.  He would, in my opinion, make an ideal candidate for the Supreme Court in 2017.  And the precedent is there, William Howard Taft was President from 1908 to 1912 and was appointed as chief justice to the Supreme Court in 1921.


This would be the worst nightmare the Republicans could experience.  Not only would the Court become liberal, it would have someone who could argue many of their cases from direct experience.  The Republicans seem to have an innate ability to “shoot themselves in the Foot,” to make a minor victory into a later tragedy for themselves as they did with Elizabeth Warren.


There is a good probability that the Senate, after the election, will move back to Democratic control.  If this were to happen it would be the ultimate in irony for the GOP, for they would have brought it about themselves, on themselves by their own stubbiness and irascibility.