Tag Supreme Court of the United States

This is not your Founding Fathers’ America

Pat Ryan Leave a comment

When we feel our treatment by our rulers has become so intolerable, so unjust – so inhumane – that we must declare our independence among the peoples and nations of the world, it just makes sense that we should explain to the rest of the world why we are doing it.  Here goes.

–Pat’s paraphrase of the preamble to the Declaration of Independence

The Founding Fathers then laid out the Declaration of Independence of the 13 “united States of America” which included the self-evident truths of the “unalienable” rights that they believed are the birthright of all humans.  Point by point, they laid out their grievances against George III and insisted they had made every good faith effort to resolve differences peacefully.  They explained that they had appealed to the goodness and mercy of “our British brethren” to end the mistreatment from which they suffered, but found them unresponsive.  And in light of those facts, they declared to the world that they and their fellow Americans were going into business for themselves.  The war that had begun the previous year was concluded by treaty in 1783; by 1787 a new Constitution of the United States was approved on behalf of the people of the new nation “in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity…”.

That legal framework set out principles to guide our development and our lives, including the principle that no man is above the law.  That idea had a pretty run there, right up until last Monday when the Supreme Court of the United States decided that presidents and former presidents of this great country were effectively kings or queens.  And despots, if they choose to be.

Immunity from prosecution.  The Justice Department has a policy that no sitting president can be prosecuted while in office, but there was no law that said that, and nothing explicit in the Constitution says a former president is immune from prosecution for officials acts taken while in office.  The high-minded concept was that a president was a person given certain powers to exercise – temporarily – on behalf of his country and in its best interests, and who would then return to his life as a regular citizen.  Would President Gerald Ford have granted Richard Nixon a pardon after his resignation over Watergate crimes if anyone had thought that the former president was immune from prosecution?  No one before has ever had the temerity to claim he had immunity from prosecution…or quite frankly, the need for immunity…before you know who.

A man made famous as much for his over-use and abuse of the legal system as for his dubious business skills that necessitated all the suing and threats of suing had nothing to lose and everything to gain (and no shame) by making an unsupported legal claim that had the desired effect of delaying his trial on felony charges of trying to overturn the legitimate results of the 2020 election.  The trial court judge hearing this case rejected the claim of immunity, so did a unanimous panel of the U.S. Court of Appeals.  The Supreme Court…well, the Supremes (1) surprised many when they agreed to hear the case at all, causing a delay until (2) they heard oral arguments April 24 and then (3) “deliberated” the rest of April, all of May and all of June – more than nine weeks – before issuing the ruling.  Guess it takes a while to create a whole new right not found in the Constitution, especially when you had said yourself, under oath, that such a right did not exist:

https://twitter.com/AccountableGOP/status/1808191057236000975
https://twitter.com/AccountableGOP/status/1807835389865951253
https://twitter.com/AccountableGOP/status/1807855254006124944

Hmmm…same folks who said Roe v. Wade was settled precedent. Interesting…

The idea proposed by Trump lawyers in oral arguments was that immunity is needed to protect former presidents from being corruptly prosecuted by their successors; whether or not that is true, there was no such right in the Constitution until this court created it with this ruling.  When was the last time you saw a former president pursued in the legal system by a previous president?  (If you said Biden is doing it to Trump right now, that is the wrong answer; he’s not.)  You haven’t seen it before: not even the lawless Trump went after Barack Obama or his other predecessors!  The assertion that this is a real and dangerous prospect is based on nothing in law or custom or history; it is a projection from Trump’s narcissistic personality disorder wherein he knows what he wants to do to Joe Biden and to every other perceived enemy, and his fevered brain assumes that’s how everyone else operates, too.

Not only did the court create a right that wasn’t there (don’t you just hate those activist judges that Republicans have been warning us about?) but, as argued by Thomas Wolf of the Brennan Center for Justice, “The Court has created an elaborate system of ambiguous rules that will not only ratchet up the complexity of the case against Trump but also erode the checks on presidential illegality. It is both a roadblock to prosecution and an encouragement to more insurrection.”

The procedures the Court has crafted to go with [the new rule] are pitched in Trump’s favor. Whenever the case returns to Judge Tanya Chutkan’s trial court, Trump will be presumed immune by default; the burden will be on the prosecution to establish that he isn’t. The Court’s definition of “official acts” cuts extremely broadly, stretching to “the outer perimeter of [Trump’s] official responsibility.” (The Court refused to say exactly where that perimeter ends.) The prosecution must show that prosecuting Trump for those official acts “would pose no dangers of intrusion on the authority and functions” of the presidency (emphasis added). The prosecution won’t be able to claim an official act was “unofficial” because of the president’s motives for doing it. (emphasis added) And Trump can seek another round of appellate review if the trial court doesn’t rule him immune. Should the government clear these hurdles, it won’t be able to use the “testimony or private records of [Trump] or his advisors” about official acts to prove his guilt. (emphasis added)

The Court justifies all this new complexity as necessary to protect imaginary future presidents from imaginary future prosecutions. It does not, critically, justify it as a response to the acts of the real and credibly accused former president in the case before it. Just as members of the Court’s conservative supermajority consistently steered the conversation at oral argument away from Trump’s charges, they do not even try to grapple with the bigger implications of applying their new rule to the case in front of them or the consequences if their rule ultimately lets Trump skate. Instead, the Court bows out of the case with the tidy but myopic claim that it “cannot afford to fixate exclusively, or even primarily, on present exigencies,” lest “transient results” threaten “the future of our Republic.”

The Court doesn’t engage with the ramifications of its opinion, because it can’t — at least not without exposing the fundamental bankruptcy of the whole edifice it has just built. The majority’s ruling cannot possibly be the rule for any functioning democracy. Trump has been charged with attempting to overthrow the election that threw him out of office. Any rule that would grant a president immunity for that crime would remove the principal check on presidential abuses of authority in our democratic system: the vote. And it would encourage other losing candidates to try the same in future elections. (emphasis added)  It is in this sense that the Court’s opinion is truly lawless. It does not merely invent constitutional rules that are antithetical to our founding commitments or enduring values. It threatens to free presidents from the constraints of law and democracy. And it paves the way for future presidents to try to make good on the most antidemocratic of all propositions: might makes right.

In reaching to resolve future imagined cases of presidential criminality while downplaying the actual criminality before it, the Court has imperiled accountability for Trump’s wrongs. It has done severe violence to our law. And it has left our democracy exposed.

Look at what Trump did while president – I mean, just the things we know he did – when there was no presumption of immunity from later prosecution; just what the hell do you think he’ll do next time if given the chance?   What about his calls for televised military tribunals of Liz Cheney and other enemies?  Immunity!  What about all the assaults on our system being planned by his supporters behind Project 2025?  Immunity!

And what about this threat from the president of the Heritage Foundation that “We are in the process of the second American Revolution, which will remain bloodless if the left allows it to be.”?  Uh, do what we want and you won’t be hurt?  Really?

And this whole depressing development comes on the heels of a televised “debate” in which we saw one candidate for president lie his ass off for 90 minutes and the other look like an elderly deer caught in the headlights; Biden is now telling Democratic governors he’s fine but needs to stop working by 8 p.m.  I got the feeling this is going to get even weirder.

I have hope. Is that misplaced?

Pat Ryan 2 Comments

Sometimes this blog receives comments which deserve space to breathe.  This one is from an old friend of mine: Pascal Piazza and I met on the first day of the 9th grade, at our alphabetically-assigned lockers in the hall of the 300 building of Houston’s George W. Strake Memorial Jesuit College Preparatory for Young Christian Gentlemen (which, of course, we were).  Since then he became a respected lawyer, and has been admitted to practice in all Texas courts including the state’s supreme court, the Supreme Court of the United States and the U.S. Circuit Court of Appeals for the Fifth Circuit, and enough federal district courts and bankruptcy courts in this part of the world to make your eyes bug out.  He’s been generally and repeatedly frustrated by some actions and inactions of the Supremes in recent cases (you’ll recognize which ones), and finally took it out on his keyboard.  PR

To the Honorable Justices of the Supreme Court of the United States:

As a citizen, a retired attorney of 40 years, and a native Texan, I adopt the personal privilege to comment, in a colloquial manner, on two potentially very divisive issues which, when resolved by the application of the plain text of the Joint Resolution Annexing the State of Texas and the 14th Amendment to the Constitution of the United States, respectively, need not be divisive and will restore the rule of law.  Both issues are easy to decide.  The parties may try to complicate them, but y’all can follow the easy, established, and time-honored path.

It’s About the Joint Resolution Annexing the State of Texas.

You will be asked by attorneys acting for the Governor of Texas to allow Texas to implement certain means (e.g., installing razor wire or deploying roving private militias) to try to prevent undocumented persons from crossing into Texas through its southern border of the Rio Grande, and further to prevent the U.S. from entering land along that border or to interfere with or remove the mitigating means, solely on the grounds of Texas’s perceived “right of public defense.”  Curiously, y’all will be asked to rule on this issue by the same Texas officials who’ve already suggested they don’t have to comply with any of your rulings that they do not like, because they elevate their perception of the sovereignty of Texas over all else.  There is, however, no need for the issue of Texas’s perceived right of public defense to escalate into accelerating tensions, to revive the nullification doctrine, or to precipitate something worse.  Instead, y’all sit at the forefront to show that Texas, like all states and persons, has the right to redress in the courts under the rule of law, and to remind the state that Texans are known for living up to their word of honor regardless of party affiliation or political persuasion.  Y’all have an easy task before you; only you can make it difficult.  Here’s a path to the easy way instead of the hard way.

The U.S. and Texas, by mutual consent, defined the right of public defense back in 1845, at the time the U.S. annexed Texas by means of a joint resolution of the U.S. Congress which was accepted by the Republic of Texas.  That right of public defense was an integral part of the unambiguous text of annexation.  Y’all need only follow that text without gloss.

Joint ResolutionThe text of the Joint Resolution Annexing Texas to the United States provides that Texas cedes to the U.S. “…all public edifices, fortifications, barracks, ports and harbors, navy and navy-yards, docks, magazines, arms, armaments, and all other property and means pertaining to the public defence belonging to said Republic of Texas.” [Emphasis added]  It does not say that Texas cedes “all other property and means pertaining to the public defence” only when Texas agrees with federal policy.  It does not state that Texas can craft its own public defense.  Texas was not given a veto power.  Texas was not given a right to repudiate or breach the plain terms, which vest all property and means pertaining to public defense to the U.S., whether listed or not.  Texas consented to these terms.

Let’s then give these words their plain meaning.  When it comes to providing for the public defense, the U.S. solely may determine whether to install razor wire or take it down, whether to use mobile militias or not, whether to enter the lands along the border or not, where or how to intercept persons crossing the border, whether to administer medical care or not, and whether to implement or pursue particular actions that Texas wants pursued.  You resolve this issue by giving effect to the plain text and thereby ensuring the fully intentional, consented-to, and coordinated sovereignty of Texas and the U.S.

There is no need to look beyond that plain text defining the public defense.  But the plain text of the remainder of the sentence defining the public defense affirms that the exclusive grant to the U.S. was intentional and was an essential part of the unique compromise that secured the required votes for passage of the Joint Resolution for Annexation after the prior Treaty for Annexation never could be ratified by the Senate.  Texas exclusively granted the U.S. the means and property rights for public defense in exchange for Texas keeping its public lands (and what would be multiple millions of dollars in oil and gas royalties) to pay off its debts.  Texas is the only state that was allowed to keep its public lands.  The U.S. gave up ownership of the public lands in Texas.  Those lands would yield multi-millions of dollars in revenue from the oil and gas found there.  Those lands could be sold off generating significant revenues, as was the practice in 19th century America.  President Polk won election over Henry Clay in 1844 based upon his vision of westward expansion into the valuable lands of Texas, which he felt had been squandered by Spain and then Mexico.  The U.S. received the right of public defense in exchange.  That is what is at issue now.

The then-new state of Texas understood the plain meaning.  I understand that the parties to an agreement cannot define meaning by how they perceive the meaning, but the first post-annexation Texas Constitution instructs y’all that Texas understood that the plain terms mean what the plain terms mean.  That constitution confirmed that the sovereignty of Texas over its soil was secure, except for what it ceded in the Joint Resolution for Annexation or otherwise in the U.S. Constitution.  It knew that the property and means of public defense, by consent, vested in the U.S.

Therefore, under the text of the Joint Resolution for Annexation, Texas occupies a unique position.  It should now – as all true Texans do – stand on its word, even if it is a handshake deal.  Of course, there is much more here than just a handshake.

Y’all will hear that Texas has some natural or inherent right of public defense.  Regardless of whether such a right does or does not exist, Texas ceded it to the U.S. when the state was annexed in 1845.

Y’all may then ask whether Article I, Section 10, clause 3 of the U.S. Constitution grants Texas some right of public defense in case it is ever invaded, whether the U.S. consents at the time or not.  Well, under Texas’s unique position, the text of the Joint Resolution for Annexation still is the starting point.  In addition, the text of Article I, Section 10, clause 3 does not mention public defense, does not mention any of the means that Texas wants to implement or adopt, does not provide that Texas can exclude the U.S. from areas occupied by Texas, does not provide that Texas can interfere with the conduct of the U.S., and does not permit Texas to breach the compromise (which a true Texan would never do).  Texas appears before y’all bound by its agreement and by the consent of Texas and the U.S. as to how the public defense plays out.  Today, Texas assumes that this is a situation where there is no consent by the U.S., yet Texas and the U.S. consented in 1845 for the U.S. to have exclusive power over public defense, whether there is an invasion or not.  Texas cannot repudiate that consent to try to go back on its word.

Some have even suggested that Texas would never have entered the Union had it known, or could have foreseen, that it did not preserve a right of public defense or could not use all land and other means for public defense.  Well, that’s what Texas did – in writing.  In Texas, we stand on our word.

It’s About the Eligibility Requirements in the U.S. Constitution

Let’s start by applying the text of the 14th Amendment as written.  Do not apply some theory of construction.  Do not apply fears of political reprisals.  Do not adopt a result and then read the words to yield your desired result.  It does not make a difference who may be ruled eligible or ineligible.  If the issue were the age of the candidate in question, you would consider only the text; y’all would not consider who the candidate is or whether your ruling would upset or even enrage the masses.

This led me to read opinions offered by distinguished retired federal judges covering the entire political spectrum based upon the text of the 14th Amendment.  How is it that these numerous distinguished federal district court judges have followed the text and find that the 14th Amendment does apply to determine eligibility?  The answer is that they followed the plain text.  Your questions to the parties during oral arguments last week indicate y’all may not agree with those opinions; I hope that your questions were meant to test the attorneys, and do not reflect your belief of what the plain text actually means.

Some advocates will claim that the president, whose position is defined in the U.S. Constitution, is not an “officer.”  However, the U.S. Constitution, at Article II, Section 1, states that the executive powers shall be vested in the president who holds his office over a four-year term.  The dictionary defines an officer as one who holds an office.  Therefore, the president is an officer as he holds the office of the president.  Yet, some of your questions indicated that you may have a problem accepting this syllogism.  Hopefully, you exercised your right during questioning during oral argument to test ideas rather than reveal your own conclusions.  The text of the 14th Amendment covers a person seeking to be “… a Senator or Representative in Congress, or an elector of President and Vice President, or hold any office, civil or military, under the United States.”  [Emphasis added]  The text, therefore, covers one who seeks to hold a federal office which, constitutionally, includes someone wanting to be the president.  This wording in the 14th Amendment does not amend the other Constitutional text that defines the president as the holder of an office (i.e., an officer).

Y’all selectively like to cite portions of the Federalist Papers or other outside writings of the Framers to try to change the otherwise unambiguous meaning of the text of the Constitution.  Please stick to the text when it is unambiguous, as in the case of the 14th Amendment, so that the inquiry ends there.  The other words of the Framers are interesting historically and allow us now to assess how brilliant they were, but those words do not comprise the text of the U.S. Constitution.  It is the text of the Constitution that matters, not what any Framer may have wanted to include in the text but failed to win approval for.  Y’all cannot import into the text of the Constitution any words which the Framers failed to include.

Public policy cannot be the tail that wags the jurisprudential dog.  If you want to make policy, then run for office.  Otherwise, honor your oath.  Your failure to honor your oath will cause more dissension and disruption to this country than following the text.  I was taught on the first day of my Constitutional Law class that y’all like to make public policy.  Just because y’all have done it before does not justify doing it anymore.

Some advocates have asked questions about states trying to impose requirements on the federal election.  Colorado and Maine are simply applying the eligibility requirements as they already exist in the U.S. Constitution.  They could do it, and have done it, regarding the minimum age to be the president.  I again hope you were just asking questions during oral argument and not revealing your conclusions when there was a perceived concern for the states trying to impose state requirements on a federal election.

A majority of the Justices currently claim that unstated rights and conditions may not be imported into the text.  So, where is the textual basis to claim that the 14th Amendment’s eligibility threshold requires Congressional action?  One opinion by one U.S. Supreme Court justice sitting as a circuit judge does not make a consensus or anything but one opinion.

The same majority of Justices also currently claim that the text of the U.S. Constitution, including the 14th Amendment, must be construed based upon the meaning of words in 1787 and 1868, respectively.  If so, the consensus of distinguished historians is that the 14th Amendment does apply as Colorado and Maine have held.  Y’all can’t ask to consult history but then reject the consensus of historians.  Y’all still should just stick to the unambiguous text.

Some advocates feign the downfall of judicial process through a fear of a multiplicity of state-based lawsuits if states seek to apply the text of the 14th Amendment.  So, does this mean that states should not seek to enforce the text of the U.S. Constitution when it applies to the duties of the states?  Could not the states seek to enforce the minimum age eligibility requirement?  When did filing suits seeking to apply the 14th Amendment become a bad thing?  Under this argument, should former Vice President Pence not have certified the last presidential election results because it led to 60 some-odd lawsuits?

Thank you.

–Pascal Paul Piazza

Court rejects race-based solution for race-based unfairness…hopes for the best

Pat Ryan Leave a comment

It’s no easy trick to find a way for a society to accept responsibility for the wrongs of the past that will satisfy everyone as being fair and effective.  In today’s America, we can’t even agree that “we” have such a responsibility, much less concur on how we can make a good faith effort to address the injustices suffered by the generations of Black Americans since the early 17th century.

Three generations ago America made an effort when Congress passed the Civil Rights Act and the Voting Rights Act.  But many felt more was needed, and as Jerome Karabel explains in today’s New York Times, “In a historic commencement address at Howard University on June 4, 1965, President Lyndon Johnson laid out the intellectual and moral basis for affirmative action.”

Speaking less than a year after the passage of the Civil Rights Act and two months before the passage of the Voting Rights Act, he invoked a metaphor that remains resonant 50 years later: “You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, ‘You are free to compete with all the others,’ and still justly believe that you have been completely fair.”

Affirmative action – race-based preferences in education, hiring and more – have been an attempt to correct historic race-based mistreatment.  Karabel says “After a brief honeymoon of public support, affirmative action was met with a powerful backlash, and the policy has been under attack ever since. Decades of lawsuits and legislation have chipped away at the use of racial preferences. And now, in a 6-to-3 decision, the Supreme Court has consigned them to the grave.”

From the Washington Post:

The Supreme Court on Thursday held that admissions programs at Harvard and the University of North Carolina that relied in part on racial considerations violate the Constitution’s guarantee of equal protection, a historic ruling that will force a dramatic change in how the nation’s private and public universities select their students.

The votes split along ideological grounds, with Chief Justice John G. Roberts Jr. writing for the conservative members in the majority, and the liberals dissenting. While the ruling involved race-conscious programs at Harvard and UNC, it will affect virtually every college and university in the United States.

“The student must be treated based on his or her experiences as an individual — not on the basis of race,” Roberts wrote, joined by Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett. “Many universities have for too long done just the opposite. And in doing so, they have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin. Our constitutional history does not tolerate that choice.”

Roberts said the admissions programs at Harvard and UNC “lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points.”

But he added that “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”

(snip)

In a lengthy dissent, Justice Sonia Sotomayor, the court’s lone Latina justice, wrote that it is “a disturbing feature of today’s decision that the Court does not even attempt to make the extraordinary showing required” to reverse precedent [of previous court rulings supporting affirmative action].

Sotomayor, who has said her own life is an example of how affirmative action programs can work, spoke at length from the bench on Thursday, a tactic justices use to mark their profound disagreement with a decision.

“Equal educational opportunity is a prerequisite to achieving racial equality in our Nation,” she wrote, joined by [Justice Ketanji Brown] Jackson and Justice Elena Kagan.

“Today, this Court stands in the way and rolls back decades of precedent and momentous progress. It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits,” Sotomayor’s dissent said. “In so holding, the Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.”

As Jackson put it, “With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat.  But deeming race irrelevant in law does not make it so in life.”

If it can find that race can’t be a factor in college admissions, it should only a matter of time before the court expands that reasoning to include private business, and to say that considerations of race – in the form of diversity, equity and inclusion initiatives – are also unconstitutional.

More from Karabel:

While race-conscious affirmative action is no longer permissible, it is worth noting that the Supreme Court ruling leaves intact many other forms of affirmative action — preferences for the children of alumni, preferences for the children of donors and preferences for student athletes, including for such boutique sports as sailing, fencing and squash. The consequences of this change are not entirely predictable, but based on what happened at the University of Michigan and the University of California, Berkeley, after they were barred from pursuing race-conscious admission policies, a sharp decline in Black and perhaps Hispanic enrollments at highly selective colleges and professional schools seems almost certain. To offset the loss, many colleges are likely to switch to a policy of affirmative action based on economic class. Such a policy would attenuate, although by no means eliminate, the racial impact of the Supreme Court’s ruling.

Affirmative action based on economic class is likely to enjoy broader public support than race-conscious affirmative action; according to a recent Washington Post poll, 62 percent of Americans believe that students from low-income families have an unfair disadvantage in getting into a good college. [David Brooks discusses this idea in the New York Times today.]  But affirmative action on its own, whether based on race or economic class, is far too limited a tool to realize the dream of the great civil rights movement of the 1960s for full racial equality. As we confront a world without race-conscious affirmative action, we would do well to remember the Rev. Dr. Martin Luther King Jr.’s admonition that to produce real equality, “the movement must address itself to the question of restructuring the whole of American society.”

I think most Americans agree that race should not matter, in college admissions or anything else.  (Not all agree, I’m afraid…and you know who you are.)  We wish it were true.  But as we all learned in our youth, wishing a thing doesn’t make it so.  Honest people will acknowledge that while we as a society have made great progress, race does still matter today.  Rulings such as this one seem aimed at making sure that some white Americans are shielded from any responsibility for righting the wrongs of the past.  Or of even acknowledging that there were past wrongs that need addressing.  That’s not a viable strategy for righting the wrongs.

(Jelani Cobb on “The End of Affirmative Action” in The New Yorker: “…almost from the outset, critics of the policy could be seen impatiently tapping their watches, questioning how long (white) society was meant to endure the patent unfairness of these racial considerations.”)

Oh, for a little straight talk now that spring is in the air

Pat Ryan 1 Comment

The political reaction to the death of Supreme Court Justice Antonin Scalia is the clearest evidence I’ve seen lately of the sclerotic thinking that passes for wisdom and strategy in American politics.  Not saying I’m surprised, mind you, just saying.

Don’t get me wrong: every vacancy on the Supreme Court of the the United States, ever, has been the occasion for political plotting and pontificating…that’s the nature of the beast.  Maybe there was more lip service paid in the past to observing “a decent interval” before going public, but we know that one reason the successful professional political players are successful is that they don’t let an opportunity to gain advantage go to waste.  In this case, Scalia’s body hadn’t made it home to Virginia before Senate Majority Leader Mitch McConnell announced his intention to block anyone nominated by President Obama in the hope that a Republican wins the presidency this November.

Why?  Because “The American people should have a voice in the selection of the next Supreme Court justice”?  Excuse me, Mr. Majority Leader and avowed Obstructionist-of-Obama-in-Chief, but that’s not the way it’s done and we all know it.

There isn’t—or shouldn’t be—any disagreement on the facts: the Constitution gives this president the responsibility to nominate a new justice in this case, not the next president; many of the same Republican senators now insisting that the process must be put on hold for the good of the nation had very different opinions when the question came up during the last few months of George W. Bush’s presidency.  (Yes, plenty of Democrats have more than a passing acquaintance with hypocrisy as a political tool, too, starting with Chuck Schumer on this same topic eight years ago; I’m sure some of you have more examples.)  Also true is that the Constitution gives responsibility to the Senate to approve or reject that nominee, with no timetable or deadline for doing so.

There’s no question that McConnell and the Republican majority have no legal requirement to approve President Obama’s nominee, or even to put the nomination to a vote.  They may make the political calculation that stonewalling for a year is the better path: bet on winning the White House and holding the Senate so they can have their pick of ultraconservative judges, versus running the risk of losing both and allowing the Democrats to choose another Douglas or Brennan (if one can be found).  I wish they would just say so, instead of going to the well for another round of the Obama Apocalypse that (inexplicably) plays so well with a certain portion of the electorate.  Andrew Prokop at Vox.com wrote them a first draft of such a speech:

Justice Scalia was a strong, solid conservative. And whoever Barack Obama nominates to replace him is certain to be well to his left — and will likely be very, very, very far to his left.

This would upset a balance of power in the Court that has existed for decades. Instead of a five-vote majority that is generally conservative, a Scalia replacement appointed by President Obama would allow a new majority bloc of five solid liberals to form. On issues affecting free enterprise, the sanctity of human life, and federal power, sweeping new liberal rulings could reshape law and precedent across America.

I believe this would be a disaster for the country. Most members of my party believe this would be a disaster for the country. And most of my party’s voters believe it would be a disaster for the country.

So I’m going to do my best to stop it from happening.

(snip)

…in suggesting that President Obama shouldn’t appoint any replacement for Scalia, and that he should just leave it to the next president, I am rhetorically going further than others have in the past.

But really I’ve just hit the fast-forward button. We would have ended up opposing whomever Obama nominated, because that person would, of course, have had liberal views. And my party’s senators would never have approved any other Obama Supreme Court nominee anyway, because they’re terrified of losing their seats in primaries.

So maybe my “no nominees in the final year” position hasn’t explicitly been taken by anyone before, but it hardly means the death of our constitutional democracy. The near-term upshot is that one Supreme Court seat stays vacant for a year. Some closely divided cases will effectively remain unresolved for a bit. Big deal.

Get yer red-hot SCOTUS arguments, right here!

Pat Ryan Leave a comment

The briefs and the arguments for today’s Supreme Court of the United States hearing on the same-sex marriage case are available…go have a read and a listen, and we can all join the High Nine in deciding the case!

This is the stuff of history, kids…don’t miss it.