THE MESS WITH THE SUPREME COURT
THE SUPREME COURT MESS
By Roger Lippman
The headlines are full of information about what both Democrats and Republicans are saying should be done with the current vacancy on the Supreme Court. While not a constitutional lawyer, let me try to simplify the issue and explain the dilemma.
As everyone knows, our Constitution provides for three branches of government: executive, legislative and judiciary. However not much was said about the judiciary in the original document. More on this later.
Justices of the Supreme Court seem to have divided themselves into two groupings: those who are strict constructionists and those who believe the Constitution is a living document. The first group believe that the document was prepared by our founding fathers and is a perfect instrument which must be strictly interpreted without any "wiggle room". The second group believe we must interpret the Constitution in light of the present times and not look back several centuries to what people were thinking and believing at that time because many things are different now.
So it is no surprise that conservative Republicans who do not want to expand government don't want to read anything into that original document allowing greater powers and favor a strict interpretation of the Constitution. Issues such as abortion, gay marriage, and limiting gun rights fall into their core beliefs so they do not want the Supreme Court to allow any of these. Of course the issue goes beyond those three and will take in consideration almost any liberal issue including health care, schooling and more.
Those on the other side view of the Constitution as allowing all of these and many other matters in light of the current times. So you can argue Democrats wanting a larger federal government, more liberal values, etc. fall here and would expand the powers to do things not specifically enumerated in the original constitution.
It is interesting to note however that while the Supreme Court powers were not really delineated in the Constitution, no other justice than John Marshall, who served as chief justice early on, took it upon himself to expand the powers of the court which in fact was beyond the written document itself. No one seems to criticize the fact that the court has the power it does today by virtue of John Marshall's decision which obviously would not have been strict construction of the Constitution.
What is all this business with a litmus test? Well, surprise surprise. A Republican president nominated: Earl Warren, a Republican governor of California to be Chief Justice of the Supreme Court. Everyone knew Warren as a Republican would influence the court in a conservative fashion but Warren surprised them when he got on the bench and molded the court in the opposite way. Since then, everyone has been wary about what a person on the court would do if nominated and approved since you couldn't give them a lie detector test to find out what they would rule in the future. So, if the nominee was on the court in some State or was a federal judge, his or her rulings in the past were examined in detail to glean what were the core beliefs of that person.
Does it always work? No because the current Chief Justice once again has, from time to time, strayed from the strict conservative mold to side with the more liberal justices, all to the chagrin of those who championed him originally. There are others who argue he did this to show that the court is not really a political animal and that it can actually look at issues in a non political manner when ruling. True? Who knows.
So there are no guarantees when someone is appointed and the nominee can't swear to never keep an open mind is put on the bench. Therefore it would seem each side wants the most conservative or liberal justice appointed to at least ensure they know their candidate. However a president, if smart, and wanting to gain approval of his nominee, especially with a divided Congress, may appoint someone who is a middle of the roader.
Now we come to today. Antonin Scalia was the most conservative justice of the Supreme Court. He was a strict constructionist who believed in the values that championed the far right and would never read anything into the Constitution. He was loud and clear about where he stood on abortion, marriage and guns.
As those who have read my prior articles know, I am pretty much a middle-of-the-road person mostly siding with Republican values as long as they don't go too far to the right and don't include social issues. As someone who is also older like myself knows, if the court was so far to the right all the time, we would never have had any of the benefits that Franklin Roosevelt pushed through during the depression, and during the second world war. Very few people today would doubt having Social Security, the FDIC and many of those agencies that protect us, cast aside. Sure Republicans are saying they never needed Social Security, but tell that to people who relied on it and still do. I hardly think many people would believe that taking away the protection depositors get when depositing funds in the bank would go over well.
Thus far no Republican has said that the president should nominate someone and let the Senate evaluate that candidate in an up or down vote. In fact our current Republican candidates for president have all said that the president should do nothing and the country wait for the next elected president. Should that be a Democrat, and I hope not, then they would probably say we should wait for perhaps another four or eight more years.
In fact nothing in the Constitution – – even for those strict constructionists – – says that the president should not nominate someone for an opening. In fact it says just the opposite. So other than for strictly political purposes when the Senate majority leader, Mitch O'Connell, says they will not even consider it, it seems to me he has overstepped the bounds. No one said that they have to vote in favor of any candidate submitted by Pres. Obama. In fact if they did not say this, he might have chosen a middle of the roader just to get support for his candidate. Now he has picked up the mantle to show Republicans will never agree to anything and that falls right into the trap where Ted Cruz has been all along.
In the last republican debate, all questions answered, including those who are lawyers in the group, said the president should not name a nominee with only a “ few months "left to run. None of us need a dictionary to know that 11 months is not a "few” months. So Ted Cruz told the audience and has continued to suggest in each speech that if Obama put someone on the bench today it would be the end of the world. All guns would be taken away – – absurd. Every abortion would be legal – – probably not, and of course it would be the end of time.
Since we all acknowledge the Constitution is the law of the land, Ted Cruz knows better than to suggest all guns will be illegal no matter who is put on the court. The Constitution gives the right to own guns. The debate, stymied by the NRA, was whether or not guns of all types are legal and can there be valid restrictions. Is it legal to own your own machine gun, Cannon, missile, automatic weapons with unlimited magazines or any type of weapon? We had basically a rural society when the Constitution was passed and the framers worried about a king or other despot taking over so they wanted people to have the right to bear arms. Also remember much of America was still in the wilderness and people needed a musket to hunt. So do we all have the right to a musket today or an automatic weapon? Is it legal to own a weapon if you are a felon, a terrorist, have mental problems, underage or some other infirmity? Can we at least have background checks and waiting periods? The NRA of course would say we don't even want to consider the issue because of the slippery slope of gun control. In reality, isn't the NRA too powerful just like the lobbies so many of us detest?
So when Ted rallies support to say the end of the world will come if we allow president Obama to carry out his constitutional duty to nominate someone, is he pandering to his core voters by suggesting the world will end? The Senate has the right to turn down someone but they should not forbid the president from nominating a candidate. I have not favored much of what Barack Obama has done with the presidency but I certainly think he has the right, under the very Constitution we all champion, to nominate a candidate.
Ideally America would be a much better place if we could all come together and agree on things. We look today at Syria and see the parties cannot even get together to discuss a cease-fire. Are we any better when those in one party brag about not getting along with anyone and that if everything is not done their way, they will filibuster and hold up any legislation? Is it no wonder that candidates like that might be considered to be anti-American?
Disagree with me if you want but we would be in a much better place if we stopped arguing and try to move ahead and find common ground. We have enormously serious problems facing us and we don't need more rhetoric from candidates that will not represent all America but just a narrow group. We need a consensus.