No Justice for “We the People”
The nomination of Chief Judge Merrick Garland by President Obama was sent to, and received by, the Senate on March 16, 2016. That’s two months ago, or about 60 days. The question is, should a sitting president in the last year of his elected term be allowed to nominate a candidate for the Supreme Court, or should “We the People” wait for the next/new President to make the nomination.
President Obama has every right to nominate a Supreme Court Justice. That is his responsibility. It is also the responsibility of the Senate to advise and consent. In other words, approve the nomination.
The Democrats want this done right now. They’ve got a lot riding on this nomination as it would change the balance of power in the Supreme Court which is now divided between “Pedal to the Metal Activist Justices” and “Original Constitutionalist Justices.”
Meanwhile, back at the ranch where “We the People” live and work, we get no justice. None in the Supreme Court, and none with our laws and rulings. None.
From the President’s point of view, approval should have been made by now. He wants his stuff passed. At least the mess that is pending, and before, heaven forbid, a Republican is elected and appoints a constitutionalist for a life-time term.
President Obama has history on his side. Or is it precedent? The following are Justices appointed by different administrations: Justice Anthony Kennedy was nominated by President Reagan on November 30, 1987 (65 days elapsed until confirmation); Chief Justice John Roberts was nominated by President G.W. Bush on July 29, 2005 (62 days elapsed until confirmation; and Justice Elena Kagan was nominated by President Obama on May 10, 2010 (87 days elapsed until confirmation).
The battle lines are drawn. How did we get snookered into this kerfuffle?
All of us at 20/20 mourn the death of a great man, Justice Antonin Scalia. We received the news with significant sadness and we want to express our heartfelt condolences, albeit late, to his family who are the ones most deeply affected.
While this is a great blow to his family and to all of us who admired this great man, it is equally an inordinate blow to the very fabric of American justice. The country cannot afford to lose great minds such as Antonin Scalia’s.
Nino, as he was known by his friends, was an avid hunter on a hunting trip in West Texas. The reports of his death are truly mystifying. Reports are that he died of natural causes, but many do not believe this. Just does not ring right. I’ll leave that to others to explain why an autopsy was not made on such an important man in such a remote location.
So where does that leave “We the People?” Up the proverbial creek without a Justice. Either way, we don’t get what we need: a constitutionalist justice.
Envisioning the future of our republic, what is next? When will the Senate advise and consent in a timely and impartial basis? Will President Obama get his way by nominating Judge Garland? Is Garland a centrist or an ideologue? Who knows?
Or will events play out that no new justice will be sitting until a new president is inaugurated in January, 2017? Where does that leave “We the People?” We all must face the fact that elections have consequences and the election of the next president, just as every president before him, has grave consequences.
Senate Majority Leader Mitch McConnell, KY Rep., has stated the senate will block whoever President Obama nominates for the vacancy left by Justice Scalia. Of course, Republicans are applauding this gesture while knowing deep down Mitch won’t do what he says he will do. President Barack Obama said, “it would be “difficult” for Senate Majority Leader Mitch McConnell to explain his decision not to consider a Supreme Court nominee without looking like he’s motivated by politics.” Democrats are gleefully praising Obama for his stance.
Meanwhile, Senate Minority Leader Harry Reid suggested a Republican, Nevada Gov. Brian Sandoval, as a potential nominee. A source confirmed to CNN that the White House is vetting Sandoval, although he has not been actively involved in the process. WTF? Harry Reid? Really? Okay, obviously a political smoke screen.
No one seems to know what cases are in process and how Chief Justice Roberts will decide if Scalia’s votes will count. Yes, the Justices vote (and Justice Scalia apparently has) and then write arguments later to prove their points and to change the minds of the other justices.
The truth is, that, even with the most secure tenure of office, during good behavior, the danger is not, that the judges will be too firm in resisting public opinion, and in defence of private rights or public liberties; but, that they will be ready to yield themselves to the passions, and politics, and prejudices of the day.
– Joseph Story Commentaries on the Constitution.
Hans von Spakovsky, a senior fellow at the conservative Heritage Foundation and a former George W. Bush administration Justice Department official, said the Supreme Court should count the late Justice Antonin Scalia’s votes on pending cases in which the justices have already cast preliminary votes.
Von Spakovsky mentioned in particular Friedrichs v. California Teachers Association, a case that would deal a blow to unions and in which Scalia was likely on the anti-union side. That is a massive problem for the Democrats.
Cases before the court on hold involve abortion rights, immigration, labor rights, and affirmative action, one stands out and climate change. A legacy item if ever there was one, The Hill reports that Obama’s landmark rule on power plants was put on hold by the Supreme Court in a 5-4 vote. It’s waiting for the outcome of state and industry lawsuits against it.
The Clean Power Plan is the main piece of Obama’s climate change agenda. It’s designed to cut carbon pollution from the electricity sector by 32 percent over 2005 levels by 2030 by assigning states individual reduction targets based on their energy mix. No Justice means it probably won’t get heard by the Supreme Court until after Obama leaves office in January 2017.
In December, the Supreme Court declined to hear a case challenging a Chicago suburb’s ban on selling and owning assault weapons. Two of the justices, Clarence Thomas and Antonin Scalia, wrote a virulent dissent when the Supreme Court refused to take the case which hasn’t heard a major gun case since 2010. That let stand a lower court’s ruling that the 2013 ban, adopted in Highland Park, Illinois, did not violate the Second Amendment or the court’s ruling interpreting it. Gun groups were furious. Now they are celebrating.
Recently, a three-judge panel of the 4th U.S. Circuit Court of Appeals, in a case called Kolbe v. Hogan, sent the state of Maryland’s ban on assault weapons back to a federal trial court for a second review. In a 2–1 decision, the majority of the appellate panel found that the semi-automatic weapons and high-capacity magazines banned under a new Maryland law “are in common use by law-abiding citizens” and cannot be banned under the Second Amendment.
This ruling makes for a “gun fight at the OK Corral,” I mean the Supreme Corral.
However, a bigger issue looms for “We the People.” There are more than 1,000 federal, district and appellate judges of various brands and flavors in the “system.” Turnover dictates about 300-400 will be newly appointed by the next President starting in 2017. This is where the real action is. This is where the greasy sausage is made. This is what shapes the direction of the country. This is the real concern.
Legal scholars have discussed whether or not to impose term limits on the Supreme Court of the United States. Presently, Supreme Court Justices are appointed for life “during good behavior.” An opinion has developed, among scholars, that the Supreme Court may not be accountable in a way that is most in line with the spirit of checks and balances. The justices have become activists and every decision they make is predicted as they rule along ideological lines.
The 20/20 Vision increases the total number of justices to fifteen (15) Supreme Court Justices, one of which will be the Chief Justice. This number correlates with an increase to 15 federal circuit courts. The purpose of this increase is to ensure that caseload backlogs are kept current in order to dispense fair and swift justice.
The 20/20 Vision appoints justices to serve a fifteen-year term instead of the current lifetime term. The justices currently on the Supreme Court will be given terms to enable the President to nominate one new justice each year to replace the justice that has reached their respective term limit.
Newly appointed justices must be between the ages of 50 and 65, in order that no justice serves past the age of 80. This rotates the court and keeps the court fresh and impartial and provides opportunity for younger Justices to serve.
This is different than what Roosevelt attempted to do in 1937. He tried to pack the court with liberal justices to neutralize those hostile to the New Deal. With the 20/20 Plan the opposite is guaranteed. No single President can pack the court with nominees. One new Justice is appointed every year.
The 20/20 Vision for “Rotation of Authority” or “Term Limits” changes the culture of government from one of perpetually seeking office and/or being in office to one of serving the best interests of the republic and the people. Some Americans will see this as an extreme idea as it is really thinking outside the box. But, this will ensure accountability and will unquestionably prevent corruption.
Can the voters accept term limits? Yes! We know the politicians cannot!
Tom Lutz
Is there such a thing as an honest politician? I agree Mitch McConnell won’t follow through with what he says he will do, just like Justice Roberts, and Reid’s suggestion of a republican candidate for the Supreme Court is a diversionary action of sorts. And finally, imposing term limits on Supreme Court members is a no brainer. My only disagreement is that 15 years is still too long, albeit I think I understand your reasoning for the 15 year term; that’s at least better than a life term.
Tom Lutz
I must apologize for my dismal attempt at jocularity in my previous comment. Everyone knows its utterly impossible to be honest AND be a politician