The Supreme Court Becomes a Political Pawn

“Justice Antonin Scalia, whose transformative legal theories, vivid writing and outsize personality made him a leader of a conservative intellectual renaissance in his three decades on the Supreme Court, was found dead on Saturday at a resort in West Texas, according to a statement from Chief Justice John G. Roberts Jr. He was 79.” (New York Times, 13 February 2016).  Scalia was intelligent and best known for his “caustic dissents that alienated even potential allies.”  Although I rarely agreed with his opinion, he being a conservative and a textualist, I respected his intellect, enjoyed reading his acerbic opinions, and the Supreme Court is a little less bright now.  That said, it is not my intent to eulogize nor criticize the man, but to address a conflict that began brewing within minutes of the news of his death being announced.

Article Two of the United States Constitution places the power of appointing Justices with the President of the United States, stating:

“he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law…”

It is clearly the responsibility of President Obama to nominate a candidate to fill the vacancy left by Justice Scalia’s death.  However, Senate Majority Leader Mitch McConnell (R-Ky.) said in a statement that the Senate controlled by his party should not confirm a replacement for Scalia until after the election.  Presidential candidate Ben Carson reiterated McConnell’s stance.  President Obama still has nearly eleven months left to serve as President of the United States, and it makes no sense whatsoever to wait that long to replace Scalia.  Obviously, the republicans are hoping to see one of their own elected as president in November, but never mind that it seems a long shot at this time, the issue here is whether it makes sense to leave the vacancy open for that long.

The Supreme Court consists of nine justices … now there are eight.  Not only does this create a possibility of a tie when deciding and ruling on cases, but under the circumstances, it creates a great probability that there will be ties in many cases over the coming months.  Why?  Because of the remaining eight justices, four are conservative (Kennedy, Roberts, Thomas, Alito) and four are liberal (Kagan, Sotomayer, Ginsburg, Breyer).  Some highly controversial issues are on the docket for the coming months:  abortion, affirmative action, the rights of religious objectors to the contraceptive mandate in the Affordable Care Act, the president’s powers on immigration, and deportation.  An eight-member court could very well be deadlocked on all of these issues.

While it is extremely unusual for a Supreme Court vacancy to be unfilled for a long period of time, it is not without precedent.  The longest was 2 years, 3 months and 18 days in a situation similar to the current one.  When Justice Henry Baldwin died April 21, 1844, John Tyler was president.  Followers of Henry Clay, believing he would be elected, voted to postpone consideration of all Tyler’s appointments.  Clay lost the election to James K. Polk at the end of 1844, but Polk’s first appointments were also rejected, thus it would be August 1846 before the Senate finally confirmed Robert C. Grier to fill the position.  (American Political Leaders 1789-2005, CQ Press Editors, 2005)

President Obama stated that he will nominate a Supreme Court Justice “in due time”, that it is his responsibility and that of the Senate to do so.  The reason, according to McConnell’s argument, that the next president should be the one to make the nomination, is to “give the voters a say in the selection”, but the fallacy in that is that the voters have no say whether President Obama or the next president make the appointment.  Unless, that is, it becomes a campaign issue.  The Supreme Court, by the nature of the Constitution, is the one branch of the federal government that is specifically not intended to be subject to the whims of politics.  That is why justices are appointed for lifetime terms, so that they will not face re-election, not be tempted by the corruption that is inherent in the political process.  So it would be unconstitutional to allow the nomination and appointment of a justice to become a political issue.

There is no doubt that, unless President Obama is able to pull a rabbit out of his hat and appoint a candidate who is unarguably acceptable to the republican controlled Senate, that same Senate will do everything in its power to block his appointments.  It is an abominable state of affairs when one party brings the wheels of justice to a screeching halt, but I fear that is what is going to happen.  And all for naught, as it is highly unlikely at this point that a republican will become the next elected president.  But alas, they must play their little games, and we, the citizens, must pay the price.

29 thoughts on “The Supreme Court Becomes a Political Pawn

  1. I am very glad to have found your blog, thanks to Jason (OM.) I’ll be back soon. 🙂 I hear what you are saying, and agree. If anything I tend to be considered too opinionated, but that isn’t true, I like to think of it as being flexible. 🙂

    Liked by 1 person

    • I am also glad you found my blog! Yes, OM has helped me many times and I am always appreciative to him. I don’t think there is such a thing as being “too opinionated” as long as one knows what they are talking about. It is people who blow hot air because they are spouting an opinion they heard on Fox or saw in a facebook meme that get me steamed. Anyway … I will be checking out your blog also … love finding others who share my interest and aren’t afraid to voice their opinions! Welcome and thanks for reading and commenting!


  2. If justice were truly blind and if the members of the SCOTUS did in fact interpret the constitution impartially then it would not matter a whit whether they were liberal or conservative in their personal beliefs. As noted elsewhere, the Supreme Court was designed to be free from political slant rather than being activist for one cause or another. Whenever political views enter into the Court’s decisions justice suffers.

    Liked by 3 people

  3. Interesting read, and I pretty much agree with what you wrote. Almost keeps me from having to post something on my own blog. 🙂

    If the GOP is successful at blocking any Obama appointee and then the Democratic Party candidate wins in November, their plan could backfire on them miserably. Not only is the GOP fighting for control of the White House, they’re also fighting to maintain control of Congress with many Republican Senators up for re-election in Blue states.

    If, and it’s a big if, the citizens of this country decide that this partisan stuff needs to stop, they could potentially send the GOP a very stinging rebuke going into 2017. Losing the White House will hurt, but if they lose the WH and the Senate, they could end up with a very Liberal justice being appointed and not having enough power to stop it.

    I’ll add that I agree with OM as well in that, if the parties were reversed, we’d likely see the same thing going on. Not too long ago, Republican Senators were speaking out about the President being the one to appoint judges and the Senate was supposed to give them a vote, not filibuster everything.

    Liked by 1 person

  4. Everything about this post was great, except it’s a “unlikely” that a Republican would get elected president. You lost me with that statement, the whole field of candidates suck, and it really will be choosing the lesser of two evils.

    Liked by 2 people

    • My theory, and it is only my theory, so we really won’t know until November, is that the GOP is so damaged right now by the hate and rhetoric that has been put forth by the candidates that they cannot possibly win. When you look at NH, for example, most of the independents and undecideds went to the democratic side, mostly Sanders. I think that will continue, and I’m 99% certain that if Trump wins the GOP nomination, then we can count on a democrat to win the general election. Again, my opinion only. Thanks for visiting and commenting!

      Liked by 2 people

    • It is a bit disheartening to see how “bad” the pool of candidates has been the last couple of decades.

      I agree with you, it’s pretty much at the point of voting for who you think will screw up the country the least.

      Liked by 1 person

  5. Reblogged this on HarsH ReaLiTy and commented:
    I thought this was a fair look at the supreme court situation. The only thing I would add is if the shoe were on the other side… the other side would act the same way. That is the politics we live in here in great America. 🙂 -OM
    Note: Comments disabled here. Please visit their blog.


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