Commentary on Republicans, Libertarians & Politics

Category: Supreme Court

Supreme Court Fight Intensifies

It didn’t take long for the shit to hit the proverbial fan. Presidential candidates from both parties are weighing in as well as many Republican Senators. It should make for an interesting year. And it could have surprising impacts and influences on not only the Presidential race but also the race for many Senate seats and possible Congress as well.

Will Obama Nominate a Liberal or Moderate?

Thoughts had been that President Obama would nominate Sri Srinivasan who was born in India but grew up in Kansas. He is viewed as extremely intelligent and even tempered and is fairly conservative. The logic of course was that he would get enough votes from Republicans to clear the Senate. He was confirmed unanimously to the US Court of Appeals three years ago and was praised by Ted Cruz of all people who was a law clerk at the Supreme Court at the same time as Srinivasan.

This was the probable choice if it had been earlier in Obama’s term, but with Mitch McConnell and other Republicans saying they will block absolutely anyone that President Obama nominates, he may change direction and go for someone more liberal.

A Black Nominee?

Some people think that President Obama will want to nominate an African American candidate for the position to counter balance the extremely conservative Clarence Thomas. Paul Watford of the 9th Circuit Court of Appeals was suggested as a possibility. At one point he was a law clerk for Ruth Bader Ginsburg when she was in the 9th Circuit.

There are several other black judges who will be considered as well, including Judge Robert Wilkins, cabinet member Jeh Johnson or Attorney General Loretta Lynch. Another possibility is Massachusetts governor Deval Patrick.

Prior Picks

President Obama’s prior picks have been fairly moderate. Elena Kagan was pushed for by both liberals and conservatives on the Harvard Law School faculty where she was dean. In fact, Justice Scalia had suggested Kagan even though she was seen as liberal.

Will Republicans Follow McConnell like Lemmings over a Cliff?

Assuming that President Obama picks someone fairly moderate, it will be difficult for Republicans to block them just because they are nominated by President Obama. Mitch McConnell the Republican leader of the Senate said after Scalia died that he didn’t care who Obama nominates, he would oppose that person. People in the US are tired of the bickering in Congress.

The Republicans want to hold on to their majority in the Senate and voting against a moderate nominee or failing to hold hearings altogether could anger voters and make it much more difficult for Republicans to win in swing states.

On top of that, if the nominee is black, it could really energize African Americans to get out and vote which could make a difference in a close election.

It will all be interesting since Scalia’s death puts all three arms of the government in play in one election cycle: the Supreme Court, the Presidency, and the Senate. (The House not so much).

Supreme Court Votes

Scalia’s death also changes the dynamics in an interesting way. Before Anthony Kennedy was conservative but often a swing vote that could change the outcome in a 5-4 vote. But now there are only 3 reliable conservatives, so just to tie, they need Kennedy. The liberals have 4, so they can tie and with Kennedy as a swing vote, they get the 5 needed.

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Scalia’s Death Opens Division

Justice Scalia was in Texas at a luxury resort doing some hunting. At least he died of natural causes and wasn’t shot by Dick Cheney. It is a 30,000 acre ranch. He attended a private party with about 40 people and went to bed. When he didn’t show up for breakfast, someone from from the ranch went to check on him and found him dead in bed. It is assumed that he died of natural causes.

Changed Supreme Court Dynamics

This will definitely change the Supreme Court even before someone is nominated and approved. If there is a 4-4 tie, the lower court ruling stands. There are a number of cases before the Supreme Court where this could make a difference. Although, it won’t have an impact for a while since most of the cases early in the term tend to be less controversial and are less likely to be close votes from what the close followers of the Supreme Court say.

Scalia’s Conservative Viewpoint

Scalia felt that all Supreme Court decisions should be made from the viewpoint of the founders and writers of the Constitution and not interpret in a way that makes sense in today’s world. He was also strongly against abortion, gay marriage, and affirmative action. Although he had a quick wit, it was a very sharp acerbic wit. But his views were so strong and unrelenting that he often alienated other justices instead of creating a coalition to get the results he wanted.

He changed the Supreme Court in oral arguments. He was much more assertive and asked many more questions than had been asked in the past. He would sometimes verbally attack lawyers presenting one side of a case.

Political Jockeying

But, wow, it didn’t take long for his death to start the political jockeying. The Republicans and conservatives of any stripe even if they aren’t Republican are hoping to hold off the nomination of a new justice until a new president is sworn in. The Democrats are expecting the nomination process to happen immediately.

President Obama has said that he will nominate someone to the Supreme Court to take Scalia’s place. He expects the Senate to do its job and confirm that person in a timely manner.

However, Senator Mitch McConnell, the Senate majority leader had a completely different view. He said that no decision should be made until a new president takes office. He said that the American people should be able to make that decision. That is one of the more blatantly partisan, political things we have heard in a while. He obviously is hoping for a Republican to win in November and appoint a conservative justice to replace Scalia. But to wait a year to fill a Supreme Court post seems a bit incredible, unless of course you are Mitch McConnell or a number of other Republicans who have jumped on the band wagon.

It is going to make the Presidential election process even more interesting.

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