Issue 8.16
The Supreme Court Of The United States (SCOTUS) is often the arbiter of the final word on many legal issues that come before the nation. The unexpected death of Justice Antonin Scalia this past weekend has changed the political landscape in significant ways, but the outcome is far from predictable. There are a series of steps to replace a Supreme Court Justice and each could go a number of ways. Before we consider them, it is appropriate to take a moment to give honor and respect to a man who had strong and generally conservative ideals but also was genial and appreciated by even those who disagreed strongly with him. He was widely acknowledged as one of the brightest legal minds to ever serve on the court. His conservatism was not based on Republican vs. Democrat, but on the idea that those who created the Constitution and the principles they used at its basis deserved immense respect and that the decisions of the Court should reflect those principles.
The first thing that must happen is that the President must submit a name to the Senate for Consideration as the new justice. President Obama has basically three options in front of him. The first is to submit a name in the normal course of events. This typically would take at least a couple of weeks during which time he could examine the lists of possible candidates and propose someone he feels is qualified and might be confirmed by the Republican Senate. The Senate has the responsibility to conduct hearings and decide if the proposed justice is worthy of their support. This is an important check and balance issue that keeps the President from bringing in unqualified or extreme justices.
Because the Senate is in recess, the President could make a recess appointment which bypasses that check and balance and places the person in service as a justice. This might be considered because some in the Senate have stated they would not support any nominee until the new president is chosen in November. The other options are to wait to propose a nominee until after the election or to wait until the recess between the end of the current congress and the swearing in of a new congress during January (another recess appointment window).
Once the nomination is made, the Senate will interview the nominee and conduct hearings. They can choose to delay those hearings or they can decide to vote whether to confirm or reject the nominee. If rejected, the process starts over again. This happened during the last year of President Reagan’s presidency when one nominee was rejected and another withdrew his name from consideration. Anthony Kennedy was finally confirmed during the last part of Reagan’s presidency.
Because it is an election year and we have a “lame-duck” President (one who will leave office during the year ahead), there are a number of reactions that are not typical. The Republicans want to wait until there is a new President, hoping he or she will be from their party and that the nominee will be similar in outlook and ideology to Justice Scalia. The Democrats want to push through a nominee soon to avoid that outcome. Both of these approaches are a disservice to our country and our future. They put politics ahead of principle.
My hope is that all voters will encourage their representatives (especially the President and Senators) to move forward taking their responsibilities and the future seriously. I would hope the President would not opt for the unnecessary and damaging recess appointment strategy that would undermine the trust in our system for political expediency. I would hope that the Senate would carefully consider the nominee and confirm or reject on the basis of whether the nominee is qualified and not extreme in ideology. Neither should make their decisions on anything but sound principle, rejecting political manipulation. It is possible that the result will be a vacancy in the court until next year because the Senate does not confirm. The fallout also might well be that the court will be too liberal for some tastes, but that is the result of the elections of our President and Congress which is ultimately our responsibility as voters. If we don’t like the outcome, we should have and should now work harder to elect people of principle who reflect the values we hold dear.
Lynn West is a thinker, a teacher and a patriot. You can reach him through email at forgingthefuture2021@gmail.com or through this newspaper. Liberty is a state of being which must be continually created. These articles can help all of us discover the ways we can contribute to that outcome.