Apparently, the GOP thinks that Black Presidents only get 3/5ths of a term

By Doug Porter

Supreme Court Justice Antonin Scalia moved on to his final judgment day over the weekend. The nation’s conservatives skipped past mourning mode for a man who’d immeasurably helped their causes and went directly to saber rattling.

Senate Majority Leader Mitch McConnell, en route to his annual visit to the US Virgin Islands, wasted no time in letting it be known that President Obama shouldn’t waste his time trying to pick a replacement.

“The American people‎ should have a voice in the selection of their next Supreme Court Justice,” McConnell said in a statement. “Therefore, this vacancy should not be filled until we have a new President.”

Thus the stage is being set for the biggest showdown of the past seven years. The Republicans 2009 vow made on the evening of Obama’s first inauguration to constipate the Congress on every administration initiative will face its ultimate test.

The opening salvo for the GOP was to make the claim they were upholding tradition, namely that the Senate isn’t obligated to confirm Supreme Court picks when it’s a president’s last year in office.

Senate Judiciary Committee chair Chuck Grassley (R-Iowa) released a statement saying “The fact of the matter is that it’s been standard practice over the last 80 years to not confirm Supreme Court nominees during a presidential election year.”

The Senate leader at brunch in the USVI

Never mind that both Grassley and McConnell voted to confirm Supreme Court Justice Anthony Kennedy on February 3, 1988, the last year of Ronald Reagan’s term. I’m guessing the 97-0 vote (three Democrats were on the campaign trail) has been erased from GOP history books.

What Grassley and other Republicans are calling “tradition” is that, since FDR no Justice has been nominated and confirmed during the last year of president’s term. The prior hundred and sixty years of “tradition” apparently don’t count.

Democratic Senator Elizabeth Warren responded to the GOP ploy, writing:

Senator McConnell is right that the American people should have a voice in the selection of the next Supreme Court justice. In fact, they did — when President Obama won the 2012 election by five million votes.

Article II Section 2 of the Constitution says the President of the United States nominates justices to the Supreme Court, with the advice and consent of the Senate. I can’t find a clause that says “…except when there’s a year left in the term of a Democratic President.”

Senate Republicans took an oath just like Senate Democrats did. Abandoning the duties they swore to uphold would threaten both the Constitution and our democracy itself. It would also prove that all the Republican talk about loving the Constitution is just that — empty talk.

GOP Senator and Presidential candidate Ted Cruz appeared on Meet the Press Sunday, making it clear he considered the upcoming election a referendum on the makeup of the Supreme Court.

From Talking Points Memo:

“…I cannot wait to stand on that debate stage with Hillary Clinton or Bernie Sanders and talk about what the Supreme Court will look like depending on who wins.”

Cruz told Todd the Senate’s duty is to “advise and consent” and “we’re advising that a lame-duck President in an election year is not going to be able to tip the balance of the Supreme Court, that we’re going to have an election.”

What’s Not Going to Happen

Gage Skidmore via Flickr (CC)

Speculation in some quarters that President Obama would take advantage of the Congressional holiday to make a recess appointment ended with a White House statement saying a nomination would be forthcoming in due time.

Democrats strategists also see a showdown on Scalia’s replacement as an opportunity to educate the public on the damage being done to the country by opposition intransigence.

Senator Chuck Schumer (D-NY) appearing on ABC’s This Week Sunday morning, aggressively defending the president’s right to nominate a justice.

From Raw Story:

“You know, the kind of obstructionism that Mitch McConnell’s talking about, he’s harking back to his old days, you know, he recently he said, well, ‘I want regular order,’” Schumer stated. “But in 2010, right after the election or right during the election, he said, ‘My number one job is to defeat Barack Obama,’ without even knowing what Barack Obama was going to propose. Here, he doesn’t even know who the president’s going to propose and he said, ‘no, we’re not having hearings, we’re not going to go forward to lead the Supreme Court vacant at 300 days in a divided time.’”

“This kind of obstructionism isn’t going to last. And you know, we Democrats didn’t do this. We voted 97-0 for Justice Kennedy in the last year of Reagan’s term. I think first the American people don’t like this obstruction. When you go right off the bat and say, ‘I don’t care who he nominates, I am going to oppose him,’ that’s not going to fly.” the New York senator concluded.

The Current Supreme Court Case Load

2016 was setting up to be a historic year for Supreme Court decisions, with rulings expected on abortion, affirmative action, immigration, contraception, voting rights and union representation.

Scalia’s death now means the court is split 4-4 along ideological lines. Unless there is a technical issue with any of the pending cases, rulings made by lower courts will stand.

In the abortion case currently before the Court, the Texas federal appeals court found that state’s abortion restrictions constitutional. It’s conceivable that Justice Kennedy will vote with the more liberal block to strike the law down, otherwise the lower court ruling stands in Texas, but not nationwide. Either way, Roe v Wade is safe for now.

On the other hand, a Texas case involving affirmative action remains on the chopping block. A federal appeals court upheld a University of Texas plan, finding it constitutional. Justice Kagan has recused herself, meaning that even without Scalia, a conservative majority exists.

A US District Court judge in Brownsville, Tex., ruled that the president’s executive orders on immigration could not be implemented without a ruling on their constitutionality. That decision was upheld by the 5th Circuit Court of Appeals in New Orleans. A split decision by the Supreme Court will mean no further action will take place on these executive orders during the Obama administration.

Religious non-profits seeking an exemption from the Affordable Care Act’s mandate that employers pay for contraceptives as part of standard health insurance plans were hopeful the court would split along ideological lines. With Scalia gone, the contraceptive mandate will likely remain in place.

The court heard arguments in early December challenging the current practice of using total population in drawing state and municipal voting districts. Those petitioning the court were seeking to have eligible voters as the basis for districting. Had the court ruled in their favor, the result would have been more mostly white and rural voting districts. Scalia’s absence from the bench ensures the status quo will remain.

Labor unions were seriously concerned about a case (Friedrichs vs. California Teachers Assn.) fast-tracked through the courts by the conservative Center for Individual Rights. The plaintiffs were hoping for a ruling overturning  a 1977 Supreme Court decision known as the Abood case, allowing public employees in unionized environments to be assessed nonmember fees to cover solely the cost of negotiations and contract enforcement. Such a decision would have a negative financial impact on unions by allowing employees to enjoy contractual benefits and pay without having to contribute to the cost of maintaining the unions that won those benefits and pay.

Following arguments before the court in January, many observers felt the ruling would go against unions. However, the court does have another option other than letting the lower court ruling stand, and it’s possible it will be used in this case.

From the Los Angeles Times:

The implications of Scalia’s death for Friedrichs are a bit uncertain. Some experts say the appellate ruling in favor of the union would be effectively affirmed by an evenly divided court. Others believe the court will ask for re-argument of the same case next term, presumably after it gets back up to full nine-member strength by the appointment and confirmation of successor to Scalia. If the Senate sticks to what it says is its determination to not even consider approving a new justice until after a new president is sworn in next January, the delay could keep the Abood challenge at bay at least until late 2017. For now, at least, the unions have won. But only for now.

Saving the Planet

Last week, the Supreme Court voted 5-4 to issue a stay and delay enforcement of Obama’s Clean Power Plan, a major EPA rule to cut carbon-dioxide emissions from the electricity sector.

Dirty energy industry groups and 27 states are currently suing to overturn the Clean Power Plan in court, arguing that the EPA has overstepped its authority.

The case will be argued before a three-judge panel of the DC Circuit Court and won’t likely be decided until next fall. It’s likely the administration will prevail. Then it will go back to the Supreme Court sometime early next year. There’s a lot of uncertainty in choosing the wait and see approach, particularly if you are among those believing the world is in crisis.

One other path the administration could take would be to rescind the regulation and issue a new, slightly different set of standards. Such a move would start the judicial process all over over again and leave it unlikely that a future stay would be granted.

Who Will Replace Scalia?

The choice of nominee by the White House will be one of most highly calculated political moves of the Obama administration. The idea will be to pick a highly qualified  candidate most likely to illustrate the dangers of the GOP’s obstructionist policies to Americans in an election year.

On the GOP side of the equation, the stakes are equally high.

From the Tom Goldstein at the SCOTUS Blog:

Fundamental conservative legal victories over the past two decades hang directly in the balance.  To take just one example, Ted Cruz is exactly right to say that a more liberal replacement for Justice Scalia is very likely to overturn the Supreme Court’s recent recognition of a Second Amendment right to possess firearms or at least render it a nullity as a practical matter.  There are dozens of other examples.  Conversely, a Republican appointee would not only preserve those victories but continue the Court’s steady move to the right.

In addition, blocking President Obama’s nominee is good politics for important subsets of Republicans.  Most directly, the Supreme Court is a signal issue for the conservative Republican base in a way that it is not for core Democratic constituencies.  Since at least Richard Nixon, conservatives have effectively rallied against the Supreme Court as a liberal institution that is out of control.  We see that dynamic today in Republican candidates’ remarkable attempt to frame even Chief Justice Roberts as a failure, based on his votes to uphold the Affordable Care Act and the administration’s implementation of the Act.

Those competing priorities put the political parties in a deadly embrace from which neither will budge.  The administration feels a constitutional responsibility to press for the confirmation of a nominee and every political advantage in doing so.  Republicans cannot accede to that effort because their base will not permit it.

Everybody and their mother are offering up names. I’m just going to list them in no particular order, along with a short description. (Clicking on the name will lead to further information.)

Kamala Harris, California Attorney General
Loretta Lynch, US Attorney General
Eric Holder, former US Attorney General
Amy Klobuchar, US Senator from Minnesota
Sheldon Whitehouse, US Senator from Rhode Island
Cory Booker, US Senator from New Jersey
David Barron, First Circuit Court of Appeals
Jane Kelly, Eighth Circuit Court of Appeals
Paul Watford, Ninth Circuit Court of Appeals
Jacqueline Nguyen,  Ninth Circuit Court of Appeals
Sri Srinivasan,  Court of Appeals for the D.C. Circuit
Patricia Millett, Court of Appeals for the D.C. Circuit
Merrick Garland, Chief Judge, Court of Appeals for the D.C. Circuit
Neal Katyal, former acting Solicitor General
Jeh Johnson, Homeland Security Secretary
Don Verrilli, Solicitor General

The Conspiracy to Kill Scalia

This wouldn’t be America without a conspiracy theorist or ten holding forth about Scalia being assassinated by President Obama or his minions.

Charles Johnson at the Little Green Footballs site has the best rundown on the unhinged set’s bleating on social media.

My favorite:

Poisoned. Just like Andrew Brietbart Right. Before he had something on Obama before reelected. And BHOs grandmother. The link to his true past.

And then there’s this guy:

I suppose I should give a tip of the Starting Line hat to the editorial board at the Union-Tribune, who sounded like reasonable adults concerning Scalia’s replacement. (Somewhere, there’s a former UT publisher/real estate mogul having a snit.)

The president and the Senate should do their jobs: nominate and deliberate.

On This Day: 1820 – Susan B. Anthony, suffragist, abolitionist, labor activist, born in Adams, Mass. “Join the union,girls, and together say: Equal Pay for Equal Work.” 1879 – President Hayes signed a bill that allowed female attorneys to argue cases before the Supreme Court. 1954 – Big Joe Turner recorded the original “Shake, Rattle & Roll”.

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Doug Porter

Doug Porter was active in the early days of the alternative press in San Diego, contributing to the OB Liberator, the print version of the OB Rag, the San Diego Door, and the San Diego Street Journal. He went on to have a 35-year career in the Hospitality business and decided to go back into raising hell when he retired. He won numerous awards for his columns from the Society of Professional Journalists in 2012, 2013, 2014, 2015, 2016 and 2017. Doug is a cancer survivor (sans vocal chords) and lives in North Park.

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