The Constitution’s Week in Review - 29 Jan 2016

February 29, 2016

Article 3. Replacing Scalia

June 1992, right in the heart of the presidential election between incumbent George H. W. Bush, and challengers Bill Clinton and H. Ross Perot, future Vice-President Joe Biden argued that during a period of divided government (i.e. different parties in control of the Congress and White House) the President should be as interested in the “advice” of the Senate as much as he is its “consent” over Court nominations.

Biden complained of President Reagan trying to cast the Court in his ideological mold.  He insisted that the Senate retains a right to investigate the ideological frame of a nominee.  He insisted the Senate has no obligation to confirm any nominee of the President.  He complained that the President’s desire to create an ideological court is an “original sin. Biden complained about using Roe v. Wade as a litmus test for assessing a nominee. In addition, Biden affirmed the tradition of not confirming a nominee during a presidential election and that no justice has ever been confirmed in the summer or fall of an election year. 

While Biden pointed out that in our history only five Justices have been confirmed during an election year (when their vacancies occurred very early in the year), “Senate consideration of a nominee [for a vacancy that occurs in the summer or early fall of an election year] is not fair to the President, the nominee, or to the Senate itself.”  (The link to the original video is posted below.)

Names are starting to pop up (or be leaked) concerning Scalia’s replacement.  The name at the top of a list I recently came across is Judge Sri Srinivasan of the D.C. Circuit Court of Appeals (Scalia’s old haunts).  The National Review warns that all might not be as it seems with Judge Srinivasan. 

Meanwhile, Nevada Governor Brian Sandoval, whose name I had not seen on any lists, has announced that he is not interested.  It appears that President Obama was actually considering nominating a Republican – now that would be interesting.  It would certainly place the Republican-controlled Senate in a bind over whether or not to hold confirmation hearings.

(Below is a link to a short PowerPoint presentation, an overview of the “Scalia Replacement” situation.)

Government Accountability.

I hope everyone realizes that if they had been a government employee and had done what Hillary Clinton appears to have done with classified information, they would have been fired, fined and possibly jailed long, long ago.  Yet the sad saga continues, as additional emails are released which once contained highly classified information, including up to the Special Access Program(SAP) level.

First Amendment.

A small victory in a First Amendment case we’ve reported on in the past.  In 2013, St. Francis Xavier Parish hired Colleen Simon as Director of Social Ministries knowing she was in a lesbian relationship.  The Director of Religious Education at the time had told Simon that her sexual orientation and marriage to another woman wouldn’t be a problem.  New leadership seemed to confirm that view.  But when her orientation became public via a magazine article which mentioned where she worked, the diocese fired her.  She sued.  Now the Circuit Court
of Jackson County, Missouri, has agreed that “the court could not interfere with the diocese’s decision.”  It appears there will be no appeal since the diocese settled the remaining issue of the case out of court.
I’ll be the first to admit that the diocese handled this whole affair horribly; giving Simon the appearance that all was well, until her relationship and association with the diocese became public, was unethical.  But the court made the right decision; when courts decide to step into church employee hiring/firing decisions, they have crossed a line they shouldn’t.  Crossing a constitutional boundary in order to punish the diocese for their inept action would have only made the situation worse.

Note: Here’s a recording of a webinar Gary Porter presented on 22 February for Christian Financial Concepts.  The topic: “Which Constitution? America's Critical Choice.”  CFC’s website holds a vast library of recorded webinars on a variety of topics. 
Sen. Joe Biden (D-DE) on Supreme Court Confirmation Process,” 1992 C-SPAN
Why Sri Srinivasan Might Not Be So Centrist or Moderate After All,” National Review
Replacing Scalia,” a PowerPoint presentation on the replacement of Justice Scalia –
 by Gary Porter

Copyright ©2016

Gary Porter is Executive Director of the Constitution Leadership Initiative, Inc., a project to inform Americans about the Founder’s view of their Constitution. In addition to writing "The Constitution's Week in Review" at, he writes regularly for the Fairfax Free Citizen of Fairfax Virginia. Mr. Porter also teaches at various locations, as well as hosting a weekly radio broadcast ("The Constitution Matters"). The program can also be heard live on the Internet every Friday morning at 
Visit Gary Porter's website at