Is Justice Done?

No single member of the current U.S. Supreme Court has (until his death) engendered more controversy than Associate Justice Antonin Scalia. His ultra-right wing bent railed against the Voting Rights Act, the Affordable Care Act, suggested that minority students wouldn’t be comfortable at the better universities, supported unlimited corporate spending in elections (as long as not directed by a candidate), etc., etc. Since his appointment three decades ago, Scalia has been the most conservative justice in modern SCOTUS history. His death on February 13^th created an instantaneous brouhaha.

Conservatives in the Senate made it clear that they would block any replacement nomination by “lame duck” president, just as President Obama pledged to make just such a selection. Will Obama pick India-born, Stanford-educated, Sri Srinivasan, a 48-year-old judge on the United States Court of Appeals for the D.C. Circuit, as favored by most experts? He’s tech-savvy with impeccable credentials and would be the first Asian-American appointed to the Supreme Court. Or would the pressure from the coming election push Obama to nominate his Attorney General, 56-year old, Harvard Law-educated, Loretta Lynch, a black woman? Someone else like a moderate that might tip the scales? Time will tell. But expect GOP pushback no matter the choice.

In recent years, Supreme Court justices did not die in office; they retired strategically. “An analysis by Marquette University's legal blog in 2012 said that 38 of the 57 Supreme Court justices who served between the nation's founding and 1900 died while in office, while 39 of the 46 justices who have served since 1900 left in retirement. ‘For the half century between 1955 and 2005, there was not a single death of a sitting Supreme Court justice,’ the blog notes…

“A 2010 study in the journal ‘Demography’ statistically analyzing the retirement and deaths of Supreme Court justices from 1789 to 2006 found that: ‘[P]olitical climate effects on death in office are consistent with the politicized departure hypothesis. When the incumbent president is of a different party than the president who appointed the justice, then the justice’s death-in-office odds are about tripled, compared with when the appointing president and the incumbent president are members of the same party.’

“The finding makes intuitive sense, given that justices do not want to give a president of the opposite party an opportunity to tilt the balance of the court. The study also contained this helpful chart [above] looking at the average age of retirement and death for Supreme Court justices.” Washington Post, January 13^th.

Article Two of the United States Constitution gives the President the right “to 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..." After the hearings before the Senate Judiciary Committee where the nominee is grilled, after the lobbyists and the politicos have applied their pressure, if the majority Committee votes to place the nomination to a floor vote of the entire Senate (and not everyone gets that far), the nomination still faces the potential of a filibuster. The full Senate itself continues the hearing process.

“Before 1981 the approval process of Justices was usually rapid. From the Truman through Nixon administrations, Justices were typically approved within one month. From the Reagan administration to the present, however, the process has taken much longer. Some believe this is because Congress sees Justices as playing a more political role than in the past. The perceived politicization of the process has drawn criticism. For example, columnist George F. Will termed the defeat of Robert Bork's nomination ‘unjust’ and, more generally, that the nomination process does ‘not delve deeply into the nominee's jurisprudential thinking.’ Supreme Court nominations have caused media speculation about whether the judge leans to the left, middle, or right. One indication of the politicized selection process is how much time each nominee spends being questioned under the glare of media coverage; before 1925, nominees were never questioned; after 1955, every nominee has been required to appear before the Senate Judiciary Committee and answer questions; and the hours spent being grilled have lengthened from single digits (before 1980) to double digits today.” Wikipedia.

“The Senate members can choose if and when to vote on the nomination. The nominee needs 50 votes to pass, but must garner the support of at least 60 members. Otherwise, the opponents can force a filibuster, in which one or more senators can speak for as long as they choose and delay the vote indefinitely.” USPolitics.about.com.

Guess what President Obama faces when he makes a nomination? Should the Senate effectively block a positive floor vote, most probably, should a Republican win the Presidency in November, the Democrats would do what is necessary to block any further Supreme Court appointments, given the gridlock we have seen of late.

Can the President actually appoint a Supreme Court Justice during a Senate recess? Yes, the Constitution does allow that, except that such a recess appointment expires at the end of the next Senate session, so this does not carry the normal power of appointment in which the justice basically serves for life (unless they retire, are impeached or die). And if we have a 4-4 split between the liberal and conservative factions of the court?

“A tie by the court effectively leaves the decision under appeal unchanged but sets no national precedent. The court has the option of setting cases for re-argument in the term that starts in October in the hope that they can be heard by a full court.

“The opening of a seat on the Supreme Court was sure to roil the presidential campaign. Both sides will use the vacancy to rouse the most fervent members of their political bases by demonstrating the stakes in the election. Republicans will likely talk about the need to stop Mr. Obama from using the court to advance his liberal agenda while Democrats will warn their supporters about the dangers of a Republican president making the selection.

“The unexpected timing of the vacancy will force Mr. Obama to make a choice about how far he is willing to go to confront Republicans and inject social issues like abortion into the fall campaign. Will he opt for a relative moderate in hopes of winning over enough Republicans to actually seat a replacement despite Mr. McConnell’s warning? Or will he choose a more liberal candidate at the risk of being blocked on the theory that it might galvanize Democratic voters?

“The situation also could prove complicated for Mr. McConnell, who since winning the majority in 2014 has labored to shed the obstructionist label and prove that his caucus can govern responsibly.” New York Times, February 13^th. Yeah, right!

We are witnessing an unraveling of the relationship between the executive and legislative branches, making the Supreme Court more important than ever. But if a qualified nominee cannot make it through this process, it augurs badly for the survivability of our form of government. Brace yourself for a mess!

I’m Peter Dekom, and we not only have a barely functioning form of government, we also have the most difficult constitution to amend among democratic countries… sad, huh?