I don’t know how long the Supreme Court will indicate their mourning of the passing of the great Justice Antonin Scalia by keeping his chair and the bench in front of it draped in black. But I do know that lovers of the Constitution will mourn the loss of one of the greatest defenders of the Constitution in recent memory for a long time to come.
Justice Scalia was the longest serving member of the Supreme Court when he died on February 13, 2016 at age 79. He remarked several times in recent years that his greatest fear was that he would be replaced by his opposite – by someone who would try to undo much of the work he had done in three decades on the Court.
Shortly after his death was announced, senior Senate leaders made it clear they would do everything possible to assure that would not happen. They said they would invoke “The Biden Rule” that basically states a president should not make any Supreme Court nomination in a presidential election year. He should allow the people of the United States to, in effect, choose the type of Justice they want by voting for a president who would appoint hat type of Justice.
When then-Senator Joe Biden was the Chairman of the Senate Judiciary Committee, he had this statement read into the Congressional Record on June 25, 1992: “It is my view that if a Supreme Court Justice resigns tomorrow, or within the next several weeks, or resigns at the end of the summer, President Bush should consider following the practice of a majority of his predecessors and not - and not
- name a nominee until after the November election is completed.”
He went on to say, “Can our Supreme Court nomination and confirmation processes, so racked by discord and bitterness, be repaired in a Presidential election year? History teaches us that this is extremely unlikely. Some of our Nation's most bitter and heated confirmation fights have come in Presidential election years...In 1800, 1828, 1864, and 1956 the President himself withheld making a nomination until after the election was held…It is time to consider whether this unbroken string of historical tradition should be broken. In my view, what history supports, common sense dictates in the case of 1992.”
He was correct. Since 1888 there has not been one Supreme Court nominee appointed in a presidential election year when the Senate and the White House were held by opposing parties. With all the political activity during an election year, there is no way to consider a nomination in a way that would not be tainted by election politics. Any Supreme Court nomination is by its nature political. But Biden was right in 1992, and his opinion is just as valid today. Any attempt to push through a nomination during this election will foment even more “discord and bitterness.”
So, of course, Obama is doing just that. In a purely political move, he has nominated Merrick Garland to fill Justice Scalia’s seat, knowing full well that there is not a snowball’s chance in Saudi Arabia that he will be confirmed. So why is he deliberately stirring up what Biden called “discord and bitterness”? More on that later.
Of course Democrats and the White House are arguing that it is “urgent” that a ninth Justice be confirmed to have a tie-breaker vote. Forget that months will pass before a new Justice would be seated even if the confirmation process started tomorrow. Listen to Biden’s own words again – when he was on the other side. (I’ll bet he wishes – often – that he didn’t talk so much, because his own words are used so often, and so deliciously, against him.)
In a speech in 1992 Biden addressed the “urgency issue by saying that folks “may fret that this approach would leave the Court with only eight members for some time. But as I see it, Mr. President, the cost of such a result, the need to reargue three or four cases that will divide the justices four to four are quite minor compared to the cost that a nominee, the president, the senate, and the nation would have to pay for what would assuredly be a bitter fight, no matter how good a person is nominated by the President, if that nomination were to take place in the next several weeks."
Of course, today Biden gets very angry any time a reporter mentions the “Biden Rule.” But any politician should realize that what is fair for one party is also fair for the other party.
I dealt thoroughly with the issue of the impact of an eight Justice Supreme Court in my February 16, 2016 article, “Is Justice Dead?”
I encourage you to read that if you have concerns about this issue. The bottom line is that there are many reasons why only eight Justices may hear a case; and many times that has been the case. But the nation still functioned.
I would like to mention another aspect of this that was not covered in my previous article. This involves the Chief Justice, John Roberts. According to many Court watchers, Justice Roberts has proven to be quite adept at crafting compromising majorities in difficult cases. That skill should mitigate many of the difficulties of a temporary vacancy.
But any Chief Justice has other powers that are not widely known which he can use in situations like this. First, he can simply delay hearing a case that will likely result in a stalemate. In the case of the Supreme Court, the old saying “Justice delayed is justice denied,” does not hold true. The vast majority of cases heard by the Court take years to get there. And once the Court agrees to take a case many months pass before any hearing takes place.
He also has the power to allow a case to go forward and then withhold the results of the vote until a ninth Justice can be seated, hear the evidence, and cast the deciding vote. According to the Supreme Court website, “A quorum of six Justices is required to decide a case. Justices may also participate in a case by listening to audio recordings of the oral arguments and reading the transcripts.”
Also consider the fact that 7,000 to 8,000 cases are submitted to the Court every term. Of these, the Court grants and hears oral arguments on only about eight cases. With an eight Justice Court, the Court may decide not to hear a case that it believes will result in a deadlock. There’s always next year…
So why is Obama doing what he is doing? Let me start by saying that, all his flowery words to the contrary, Merrick Garland is not someone that Obama wants on the Court. For one thing, he is not a flaming Liberal like Obama’s other two appointments, Elena Kagan and Sonia Sotomayor. For another, at age 63, Garland is not what one would call a “legacy pick.” Presidents like to appoint younger judges who will influence the Court according to the president’s political persuasion long after he has left office.
So you will not be shocked to hear that his reasons are purely political. He knows he will probably not be able to seat another Justice before his term of office ends. His only hope is to put forth a “consensus” pick – someone both sides of the aisle can agree upon. No one knows what goes on in his head, but I suspect that he believes Hillary will not succeed him, and he would rather have a “moderate” in Scalia’s seat than a serious Constitutional Conservative chosen by a Republican.
He will work hard to force the Senate to give his nominee a hearing. At the worst he can try to make Republicans look bad by stating they are not “doing their duty” if they don’t hold hearings. (Actually all the Constitution requires is that Congress “advise and consent” with regard to certain nominations. By refusing to hear from the nominee they are “advising” the president that they don’t approve of him or her. And “consent” is like respect – it cannot be commanded.)
And he has been working hard. Even before Obama announced the nomination in the Rose Garden, he had established – at taxpayer expense – a special Twitter account to lobby for the nomination. That very morning it made his untrue post: “Without a ninth Justice, decisions can’t legally establish uniform, nationwide rules.” That is totally untrue. The process for dealing with split decisions is also covered in my recent article, “Is Justice Dead?”
Another post” “One third of all previous US presidents have had a nominee confirmed to the Supreme Court in an election year.” True, but very misleading. This is an obvious attempt to blunt the impact of the Biden Rule. They are lumping all presidents in the same category, including those whose party held a majority in the Senate. Of course their party will confirm their nominees. But the fact stated earlier is still true: Since 1888 there has not been one Supreme Court nominee appointed in a presidential election year when the Senate and the White House were held by opposing parties.
This is not a law. But both Democrats and Republicans have held to this tradition for 128 years. And both have complained about it when they were the party not in control of the Senate. The tradition has held because the party that does not hold the White House wants to have the opportunity to appoint the next Justice if they win. What president wants to take office with a Supreme Court packed by the previous president with Justices who will rule everything he does unconstitutional?
So the idea that this election will be, at least in part, a referendum on the makeup of the Supreme Court is valid. The people should have a say in the matter. If they vote for Bernie or Hillary, they will get – and deserve – a Supreme Court that will take our nation further down the road to Socialism. And if they elect the Republican nominee, presumably he will nominate a true Constitutional Conservative.
And there’s the rub. No one knows who will be the next occupant of the White House. When Mitch McConnell announced that the Senate would not hold hearings on any Obama nominee, he obviously believed that a Republican would win the next election. But what if he was wrong? If either Hillary or Bernie wins, Merrick Garland will start looking pretty good to Conservatives.
And what if Trump is the Republican nominee and he wins? Hopefully he would nominate a true Conservative. But with his confrontational style, he might have a hard time getting anyone approved – especially if (heaven forbid) the Democrats regain control of the Senate in November. At that point, Merrick Garland might look pretty good to the GOP.
I won’t take time to discuss Garland’s qualifications at this point. First, because Obama has nominated him as a pawn – a sacrificial lamb to be used in his fight with Republicans, and then discarded. Second, because we don’t know enough about him – and we won’t until and if there are hearings with probing questions.
I will just say that from all accounts he is fairly moderate and seems to be well-respected by people on both sides of the aisle. In 1997 when he was nominated for his current position of the Washington, DC Court of Appeals, he was praised by many Republicans and his nomination passed with a bi-partisan majority.
So he might just be the ninth member of a Supreme Dream Team. Think about it this way: If we want fair decisions based solely on the Constitution and not on politics, we would put only politically neutral people on the bench. Since that’s not possible, how about adding Merrick, a moderate by all accounts, to a Court with four obnoxiously Liberal Justices, and four mostly Conservative Justices. Sometimes he would vote with the Liberals, sometimes with the Conservatives. But it might be the best we will get, given the current circumstances.
Of course you and I would consider a Supreme Dream Team nine Justices who revere the Constitution and understand that it is God, not the government, Who gives us our rights. Hillary and Biden would consider a Supreme Dream Team one with nine atheist or agnostic Justices who think the Constitution can be changed at will by judges. Of course, with our political system, we will never see either of these teams formed.
So perhaps the Republicans might want to give some serious thought to giving Garland a careful examination and possibly confirmation. If things go terribly bad in November and Hillary becomes president, I can guarantee you that her nominee will make your toes curl. We will be cursed with a majority Liberal Court for decades.
One final thought. I haven’t heard anyone talk about this, but Obama’s secret plan might be to get Garland on the Supreme Court for a very strategic reason. He is currently the Chief Judge of the second most powerful court in the land – the United States Court of Appeals for the District of Columbia.
This court has the responsibility of directly reviewing the decisions and rulemaking of many federal independent agencies of the United States government based in the national capital. It hears many of these cases without them having first been heard by a district court. It does so much business that it has eleven judges – more than the Supreme Court. Because of the broad areas over which federal agencies have power, this often gives the judges of the D.C. Circuit a powerful role in affecting national U.S. policy and law. Due to this role, the D.C. Circuit is much more powerful than any other US Court of Appeals.
What if Obama somehow manages to get Garland approved? It is possible in the strange world of politics that the Republicans might change their stance on giving him a hearing, especially if it looks like Hillary will win. I can envision a midnight session of the Senate Judiciary Committee on election night rushing to get Garland confirmed if she manages to get elected without getting indicted.
If that happens, the GOP will need to watch Obama’s next move carefully. Given the fact that government agencies are doing more governing than Congress these days, putting an extreme Liberal in Garland’s chair as Chief Judge of the second most powerful court in the land could be almost as damaging as seating another Liberal Justice on the Supreme Court.
Antonin Scalia – Appointed by Ronald Reagan (Video and Article)
The Biden Rule – Multiple Direct Quotes from Joe Biden that Supreme Court Nominations Should NOT be Made in a Presidential Election Year.
Supreme Court FAQ’s