Party Politics Over a Supreme Court Vacancy is Nothing New

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Supreme Court Building (Wikimedia: Public Domain)

The death of Supreme Court Justice Antonin Scalia has unleashed a highly controversial issue in the midst of a highly peculiar Presidential election year. That an avowed socialist is staging a strong challenge to a mainstream Democratic candidate while an egotistical billionaire leads the Republican field over mainstream Republican candidates has made for an explosive and unpredictable campaign. Now, the death of the bombastic Scalia is presenting President Barack Obama with another opportunity to cement his influence on American politics for decades. It will not be easy as the President needs the “advice and consent” of the Senate, controlled by Republicans, to approve any appointment. Senate Majority Leader Mitch O’Connell has suggested that Obama should shelve his ideas for an appointment until the Presidential election is over. Cutting through the political hyperbole is difficult, but there are both historically unique and commonplace issues in this Supreme Court controversy.

Supreme Court nominees have often faced contentious confirmation hearings throughout history. There have been 160 official nominations to the Supreme Court (some nominees were withdrawn prior to official nomination). Of these, 124 have been selected to serve. That means over 25% are rejected when present to the Senate.

It didn’t take long for the Senate to reject its first nominee. George Washington appointed 11 justices, but his appointment of John Rutledge as Chief Justice was rejected 14-10. Rutledge was voted down primarily because he opposed the Jay Treaty, which averted a second war with Great Britain. Obviously, this rejection was based on political reasons and not Rutledge’s qualifications. James Madison’s nominee, Alexander Wolcott, was defeated by the largest percentage ever, 24-9. Wolcott was disliked because he was a customs inspector who enforced unpopular laws and lacked legal training.

Things cruised along relatively smoothly after Wolcott until poor John Tyler assumed the Presidency as the first non-elected President after William Henry Harrison’s death. Known as “His Accidency,” Tyler did not endear himself to his fellow Whigs as they kicked him out of the party over policy disagreements. Others questioned if Tyler should exercise his full presidential powers since he was not elected.  The death of Supreme Court Justice Spencer Thompson led to six nominations over a period of one year, one month and 27 days before the Senate confirmed a replacement. As excruciating as that was, Tyler’s next nomination too even longer. That led to the lengthiest nomination process ever for a Supreme Court Justice. With the death of Supreme Court Justice Henry Baldwin on April 21, 1844, Tyler made three appointment in his last year in office, but none of them were confirmed. The next President, James Polk, had to submit two more names before Robert Grier was finally confirmed for Baldwin on August 4, 1846 – two years, three months and 14 days after Baldwin’s death.

After Polk, John Buchanan’s nominees split a highly divided country with close votes prior to the Civil War with one of them being rejected. Ulysses Grant would have a nominee rejected, and Grover Cleveland two. After that, no nominee was rejected until 1930 when Herbert Hoover nominated John Parker who was narrowly rejected 41-39, primarily because of opposition from labor unions and racial statements that he made as a gubernatorial candidate. Parker was the only nominee rejected between 1894 and when Abe Fortas withdrew as Lyndon Johnson’s nominee in 1968.

Fortas was the first nominee to be filibustered. That opened the floodgates to the modern era of contention. Two of Richard Nixon’s appointees were rejected: Clement Haynsworth and Harold Carswell. Haynsworth was rejected as retaliation by a Democratic Senate for the filibuster of Fortas by Republicans. Harrold Carswell was rejected because of his stances on women’s rights and racial issues, plus some questions about his judicial “mediocrity.” Next came the rejection of Ronald Reagan’s appointee Robert Bork over his political positions, and George W. Bush’s selection of Harriet Miers on the basis of her qualifications.

It’s clear that the current opposition to an Obama nominee will also be on politics, although legal qualifications may develop once a name is known. None of this should be a surprise because of the highly conflicted nature of American politics during these times.

What is disingenuous is the argument by many prominent Republicans that Obama should not make a nomination because he is a lame duck or that there is a precedent not to make a nomination during a Presidential election year. It is true that during Presidential election years, fewer Supreme Court Justices are nominated. However, that has more to do with Supreme Court Justices knowing that a resignation during a Presidential election year is going to lead to a huge political battle. The only resignations during a Presidential election year were the liberal Fortas in 1968, when Democrats controlled the Senate and White House; Oliver Wendell Holmes in 1932, who was pushed out by his colleagues because he was over 90 years old; Charles Hughes in 1916 who was nominated by the Republican Party to run for President against Woodrow Wilson; William Strong and Samuel Nelson, who resigned after the 1880 and 1872 Presidential elections; and Oliver Ellsworth, who resigned in 1796 before partisan politics had fully developed in Presidential politics.

The lack of Supreme Court nominations and confirmations during a Presidential election year has nothing to do with Presidential or Senatorial precedent. It is simply that, except for extraordinary instances, vacancies come about on the Supreme Court during Presidential election years because of a Justice’s death, not a resignation.

With Scalia’s death, the question will not only be who his replacement will be, but will the time needed for a confirmation break the record of over two years attained during the Tyler and Polk administrations.

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Religious Beliefs are not a Justification for Refusing to Fulfill Government Duties

CC: D.22.v.92L

CC: D.22.v.92L

With same-sex marriage the law of the land, there is no surprise that some county clerks, backed by state officials, have balked at issuing licenses for same-sex couples. Their opposition is based on religious considerations.

In Arkansas, a county clerk of 24 years decided to retire than violate her religious beliefs. That is her prerogative. As a government official, her responsibility is to represent all the people equally. Her decision to resign is the proper one. It keeps her religious beliefs intact, as she desires, and opens up the county clerk position to someone with a willingness to uphold the equality guaranteed in the Constitution.

In adjacent Texas, Attorney General Ken Paxton is trying to rally resistant clerks by offering whatever support that he can and inform them that lawyers are lining up to offer pro bono support for any clerks who face legal troubles for denying same-sex couples the right to marry.

“[T]he United States Supreme Court again ignored the text and spirit of the Constitution to manufacture a right that simply does not exist,” Paxton said in a statement. “… Importantly, the reach of the Court’s opinion stops at the door of the First Amendment and our laws protecting religious liberty.”

It is disappointing that an attorney general can get the Constitution so wrong. One’s religious liberty, as well as other First Amendment rights, and many other rights of the Constitution, have limitations while performing a government job. A person who is a government employee can’t claim exemptions from fulfilling their legal responsibility because doing so will trample the equal protections that the Constitution guarantees every American. It is no more acceptable for a county clerk to refuse to fulfill their job responsibilities equally than it is for a police officer. The solution for those who feel that they are violating personal religious beliefs is simple: follow the path of the Arkansas clerk who resigned.

Removing oneself from involvement with the government is a long-practiced action by many who hold strong religious beliefs. Conscientious objectors are a prime example, but others have chosen to exclude themselves from the government for other reasons. The Amish refuse social security because it is seen as a form of insurance that they prohibit. These believers remove themselves from the government actions that offend them. Their conscience decisions are their right, as guaranteed under the Constitution. It is not their right to become army recruiters or social security administrators and deny those jobs and programs to others because they find them offensive.

The alternative would open a mountain of exemptions that could eventually cripple the government and all our notions of fairness. If county clerks can deny equal treatment to same-sex couples, then they can do it for a range of other intrusions on their religious beliefs.

  • They could deny marriage to Muslims, atheists or other non-Christians.
  • It might offend their religious sensibilities against racial or ethnic purity to let people of different races marry.
  • Women who are dressed too provocatively could be deemed as unsuitable for marriage.
  • The same goes for women who express a desire to work outside the home or pay for the marriage license instead of the man.
  • Adulterers could be denied marriage licenses.

The list is endless.

Even the argument that the objection is only about transforming the ages old notion of marriage between a man and a woman is faulty. The Old Testament allows polygamy, marriage of masters and slaves, rapists and victims, child marriage and so on. The concept of marriage has changed over the millennias. Those who think otherwise are deluding themselves.

The Supreme Court came down on the side of same-sex marriage as a contract between two people. It did not take a stance on the morality. It is simply about people engaging in a consensual contract and having the same rights that others already possess.

As a government employee, it is a person’s responsibility to uphold that law. This issue is as simple as that. For the county clerks who refuse licenses for same-sex marriages, they need to show themselves the door as soon as possible.

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How Scalia Learned to Stop Worrying and Love Torture

Antonin_ScaliaSupreme Court Justice Antonin Scalia has raised his voice over the recent release of the Senate’s torture report. This report revealed that the CIA used far harsher methods than previously reported on terrorism suspects and failed to report it fully to the George W. Bush Administration. The public response has been outrage. The response from Scalia is that it is not a big deal.

Scalia has even taken the position that the Constitution does nothing to prohibit torture.

“We have laws against torture. The Constitution itself says nothing about torture. The Constitution speaks of punishment. If you condemn someone who has committed a crime to torture, that would be unconstitutional.”

Scalia suggested that if the stakes are high enough then torture is acceptable.

“We have never held that to be contrary to the Constitution. I don’t see any article of the Constitution that would contravene—listen, I think it’s very facile for people to say, “Oh, torture is terrible.” You posit the situation where a person that you know for sure knows the location of a nuclear bomb that has been planted in Los Angeles and will kill millions of people. You think it’s an easy question? You think it’s clear that you cannot use extreme measures to get that information out of that person?”

There is so much wrong here that it is difficult to count.

First, let’s look at the feasibility of torture. This age-old violation is very effective at getting confessions. There is no doubt about that. Of course, there is no way of knowing if the confession is true, completely made up or confessed because it is what the torturer wants to hear. Torture someone long enough, and that person will confess to any crime in history. All the tortured wants is for the torture to stop. Creating pain is not a truth serum. Indeed, it is the opposite. Lies are spat forth in dire attempts to get the pain to cease.

It is one of the favorite arguments of torture supporters that torture is justified when a secret nuclear bomb has been planted in a large city. In Scalia’s example, that is Los Angeles. According to Scalia and the rest of the pro-torture backers, the only way to uncover this ticking nuclear bomb is to torture the person who knows where it is.

Actually, this is one of the least likely incidents where torture will work. If there are 24 hours to go before the detonation, all the terrorist needs to do is keep confessing to fake sites. First, it is at site “A.” Next, it is site “B” or “C” or “D.” All along the clock ticks toward zero. While one site is checked, crucial time slips away. If the torturers keep torturing while a site is checked out, the terrorist knows that he only needs to hold out for a few more hours to achieve his goal. He has no incentive to tell the truth because the torture isn’t going to stop anyway. The torturers have no way of knowing what is true and what is lie, so they just keep torturing. The terrorist is going to continue to be tortured until the bomb detonates. No one is going to crack a true believer by torture when a clock is ticking to destruction. Of all the incidents where torture may be used, one with a time limit is the least likely to succeed.

Back to the Constitution, Scalia wants people to believe that there are no protections in the Constitution to prohibit torture. He specifically refers to the Eighth Amendment, which reads:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

To a certain degree, Scalia has a point there. Cruel and unusual punishments are prohibited under the Constitution. The key word here is punishment. Punishment is usually identified as what a court metes out. According to Scalia, since a court wouldn’t have rendered a verdict on someone detained on charges of terrorism, then the Eighth Amendment clause prohibiting cruel and unusual punishment need not apply.

Yes, this is a member of the Supreme Court, and one of its more influential members at that, specifically stating that the Constitution is ready to give a nod and wink to pulling out someone’s fingernails or waterboarding them as long as they are not convicted of a crime.

Torture is scary, but Scalia’s ignorance, or more likely, his willingness to twist the Constitution into anything he wants it to read is what is even scarier.

There are some who believe that if the terrorist is a non-citizen, then the Bill of Rights doesn’t apply any way. Think again. The Bill of Rights repeatedly refers to “people” not “citizens.” This is a primary reason that terrorism subjects are kept in places like Guantanamo Bay. Even the torture advocates realize that if suspects are brought onto American soil, then there is no way that they can be denied the Bill of Rights.

The Bill of Rights, through previous court interpretations, refutes Scalia’s assertion that torture is okay under the Constitution. Courts have long ago determined that torture is a violation of the Fourth Amendment’s right to unreasonable search or seizure. It is also a violation of the Fifth Amendment’s right against self-incrimination. It can also be added in that torture is a violation of the Fifth and Fourteenth Amendment’s guarantee to due process. In addition, anyone who thinks that the Founding Fathers intended for prohibitions against torture on people who are convicted of crimes, but allowed the torture of someone who is merely a suspect should apply for an internship under Scalia. He is looking for sycophants like you to lick his boots.

Then there are an entire range of international documents that prohibit torture and ill-treatment of prisoners that the U.S. has ratified and many carry the force of law . These include the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights and Convention against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment.

For those who think that terrorism suspects are prisoners of war and not criminals so that none of this applies, there is the Geneva Convention. Torture is not an acceptable action to inflict on any POW. Of course, if terrorism suspects were really POWs, then there wouldn’t be criminal prosecutions against terrorism. Over the last few years, American officials have tried to have it both ways. Terrorists are criminals so the Geneva Convention doesn’t apply; terrorists are POWs so the Bill of Rights doesn’t apply.

Terrorists are not nice people. They are disgusting, vile scum. Yet, if there is not enough evidence to hold and convict them, then how can anyone be sure that the right person is being detained? Once convicted, they should never be left to wander freely. These aren’t the common criminals who are seeking to steal a buck and live the good life. These are die-hard fanatics who want other people dead because it fits their self-righteous ideology.

However, the greatest danger is not from the terrorists. It comes from people like Scalia who are ready to surrender the long-held rights of Americans so that they can create an America of one nation, under God and torture available for all.

The fact is that America has tortured people and broken its covenant as a freedom loving country that respects human rights. We have embarked upon an extraordinarily dangerous road. If terrorists can be tortured because of what they might know, then what stops torturing someone who is part of a conspiracy to murder many people? What prevents the torture of someone who has made plans to murder someone? Or rape someone? Or burglarize and burn a business or home? Once torture is allowed constitutionally for a single extreme case, what prevents it from being part of regular police work to combat crime? Absolutely nothing.

That is why Antonin Scalia’s recent thoughts should give pause for every American. One of the nine people who interpret the Constitution has just announced that the Constitution doesn’t protect you from torture. That is as scary as the threat from any terrorist.

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