And Then There Were 8….

I promised in my first blog post that I would be writing a blog post about what really triggered me to start this blog, the reaction to the death of Supreme Court Justice Antonin Scalia yesterday.

When news hit Facebook and the internet that Scalia had died, I was slightly stunned.  I mean he was the 2nd oldest justice (Justice Ginsburg is 82), but there was no news that he had any serious health problems.  I, obviously, disagreed most of the time with Scalia’s views and votes on the court, but I am a decent human being (well, at least, I hope so), so I felt bad for his family and friends.

I figured it was a given that President Obama would take a short time and appoint a successor.  Then, less than 3 hours after I, at least, learned of Scalia’s death, came a pronouncement from Senator Mitch McConnell (R-KY), the Senate Majority Leader.  He declared that the Senate would consider no replacement until the new president was sworn in and so Obama shouldn’t bother even sending a nomination to the Senate.

On one level, this shouldn’t be a surprise.  For the last 5 years, the Congress has done virtually nothing but harass the President and try to thwart him from making any moves.  They certainly haven’t done much else.  So this fits right in with the “Do Nothing” Congress.

However, this Congress has also made a point of criticizing the President when he makes Executive Orders, saying he is going beyond the duties he has in the Constitution while the President is doing this mainly because the Congress refuses to do anything.  Now the irony in this is that the Constitution specifically spells out that one of the president’s duties is to appoint judges to the Supreme Court (along with other federal courts) with the “advise and consent” of the U.S. Senate.  So if President Obama doesn’t send a nomination, he’ll actually be violating the Constitution, and if the Senate does nothing with the nomination, so will they.

Several Democratic elected officials have chimed in on Senator McConnell’s declaration.  Governor Jerry Brown of California asked if McConnell could have at least waited for Scalia’s funeral to make the issue a political one.  Of course, Senator Harry Reid of Nevada, the Minority Leader, made a statement that McConnell and the Republicans better not stop a nomination from proceeding.  Both Democratic candidates for President made statements, as did Senator Elizabeth Warren.  I agree with Governor Brown’s sentiment.  While as I keep saying I didn’t agree with Justice Scalia while he was on the court, the man was a human being and has family and friends mourning his passing and respect should rule the day.  I should also mention that both President Obama and Vice President Biden  made comments.  The president offered condolences to Scalia’s family and stated that in due time, he will be forwarding a nomination.  Biden offered condolences and Biden also said that his vote while a Senator to approve Scalia is one of the few he regrets, but that’s because Scalia was “so good” at his job.

Last night, by coincidence, happened to be the latest Republican Presidential Debate.  (Now why we are having debates on a Saturday night (especially one where many would have been observing Valentine’s Day since tonight would be a work night,) is beyond me.) Senator Ted Cruz made a comment during the debate that there hasn’t been a confirmation of a Supreme Court Justice in a presidential election year in 80 years.  The moderator, John Dickerson, who had researched the issue for last night’s debate, corrected him by saying that current Justice Anthony Kennedy was confirmed in 1988, the last year of President Reagan’s second term and an election year.  It should be pointed out that Reagan nominated him the previous year, but I suspect the end-of-year holidays postponed the confirmation into the new year.  But what was even worse than the fact that Senator Cruz was partially wrong is that the audience at the debate booed Dickerson for correcting the senator.  That is what’s wrong with the Republican Party today.  Facts and truths mean nothing to them.  Just how they “feel” about things.

Now, if President Obama hopes at all to get his nomination approved, it is the common thought that he needs to find a justice who is middle of the road /moderate in his views.  The rumored front-runner is Judge Sri Srinivasan, a 48-year-old Indian-American who currently serves on the U.S. Court of Appeals for the District of Columbia Circuit, a place where several Justices and nominees have come from in the past.  Just less than 3 years, Srinivasan was approved for his position by a 97-0 vote, so obviously if Obama nominates him, the Senate will have a hard time rejecting him now, so soon after wide support for him.

One of the other possibilities that arise if the Senate is successful in thwarting a nomination going forward this year, which is possible also based on the fact that the Senate will be in session very few days between now and the November election to accommodate campaigning for their jobs, for the Presidential candidates, and other candidates, is that if a Democrat wins the White House and if the Democratic Party can retake the majority in the Senate, that the new Democratic President (whether Sanders or Clinton) will nominate President Obama for the vacancy, which would be the ultimate irony.  I could live with that, but I suspect if a Democrat wins the White House, Justice Ginsburg, who has been battling health issues in recent years, would likely retire at the beginning of the new President’s term, also allowing Obama to be appointed.

Justice Ginsburg’s health, along with the fact that 2 other justices are over the age of 75 makes it almost imperative that we do appoint a successor to Justice Scalia sooner rather than later, having more than 1 open vacancy on the court at one time, would be a very unideal situation.

I look forward to seeing how this situation plays out, especially during this Presidential Election year.



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