By Edwin Cooney
The
body of the most preeminent conservative legal scholar and beloved Supreme
Court Justice of our time, Antonin Scalia, was hardly cold last Saturday,
February 13th, 2016 when it all began.
Senator
Mitch McConnell, leader of the U.S. Senate Republican majority, announced that
no nominee presented by President Barack Obama to fill the vacancy created by
Justice Scalia’s death would receive a hearing, let alone confirmation, by the
United States Senate. After all, Senator
McConnell asserted, 2016 is an election year and thus it is only reasonable
that the voice of the people should be heard so that the next president may be
more responsive to the people’s will. On
the surface that idea appears reasonable if you believe that we live in a
democracy. Aside from the number of
times I’ve heard Republicans lecture liberals that “after all, we live in a
republic not a democracy,” one of the main principles practiced by the Founding
Fathers was that the judiciary should be above politics. The uncomfortable truth is that the court has
never been appointed nor has it ever functioned devoid of politics.
In
1800, when Chief Justice Oliver Ellsworth became ill and resigned his seat on
the Supreme Court, President John Adams, a member of the Federalist Party and a
“lame duck” with the election of Thomas Jefferson, wanted to reappoint John Jay
to his old seat. However, Jay didn’t
want the position, so Adams appointed his outgoing Secretary of State, John
Marshall, a personal as well as a political opponent of President-elect
Jefferson. President Adams made no bones
of the fact that he wanted some Federalist party influence to remain in the
body politic for as long as possible.
Hence, Marshall was appointed and confirmed by the outgoing Federalist Congress
which would be replaced by a Democratic-Republican Congress the following
December.
Over
the past week, I’ve read over a dozen historical instances that fly in the face
of what Senator McConnell and all the potential GOP presidents had to say about
the rarity of Supreme Court appointments around election time. What is amazing about all this pretense is
how unaware these GOP presidential hopefuls seem to be regarding historical
facts. What’s downright galling about
their pretense is how brazenly they defy principle which they always insist
lies at the root of their socio/legal Christian-based patriotic beliefs. Let’s get it straight: all parties and principled politicians
invariably play politics - especially when it really matters. I’ve read recently that former Associate
Justice Sandra Day O’Connor regrets, at least somewhat, the roll the Supreme
Court played in Bush vs. Gore in December of 2000.
Neither
political party is historically free of playing politics with the Supreme
Court. The most famous case was FDR’s
decision to “pack” the court in 1937 by adding a new judge to the court for
every justice over the age of seventy who refused to retire. Many Democrats including Vice President John
Nance Garner disapproved of Roosevelt’s action back in 1937. What they resented most, however, was that he
hadn’t let the congressional leadership of Congress in on what he planned to do
before he announced it. Harry Truman was
one of the few Democratic senators who defended the president. He reminded us that there was nothing in the
constitution that dictated that the court have nine members. After the Civil War, the court had only five
members up until around 1869, the first year of the Grant administration. On several other occasions early in the 1800s,
it had less than nine members.
Politicians of both parties really get self-righteous when they start
waxing eloquent about the judiciary.
That isn’t to deny that there are some legitimate and important matters
at stake, the outcome of which will certainly depend on who is appointed to
fill Justice Scalia’s seat. At the heart
of all this is a final and most uncomfortable reality. Historically, politics has been rather academic
for the most part. However, during several
periods in our history since 1789, politics has become desperate. The first time was that period from 1847
through 1861 leading up to the Civil War.
The second time was during the Depression when everyone was out of ideas
except Franklin D. Roosevelt. Thus his success
during that historic one hundred days.
The third period was between late 1965 and 1981 during the upheaval
brought on by political assassinations, the civil rights movement, the Vietnam
War and Watergate all rolled into that fifteen-year era. The fourth time is now!
Writing
in the Washington Post, columnist Catherine Rampell opined that apparently,
according to the Republicans, a president’s first, third and final years in
office do not count. They excuse
President George W. Bush from any responsibility for 9/11 because it was too
early in his presidency. They insist
that the last year of a presidency doesn’t count since the people can soon
decide the course of the future. The
third year of a presidency doesn’t count because, after all, in 2015, the third
year of President Obama’s second term, the Senate only approved 11 judicial
appointments, the least in history since 1953.
That
reminds me, however, how in 1980, after Ronald Reagan’s stunning victory over
President Jimmy Carter, President-Elect Reagan’s advisers insisted that
President Carter had full authority to negotiate with Iran for the freedom of
Americans held hostage in Iran until noon on January 20th, 1981. Of course, they later insisted that the
Iranians settled with Jimmy Carter out of fear of President-Elect Reagan, but
of course it was all up to President Carter.
(Remember how the Iranians would manipulate President Reagan over
hostages taken in the Middle East in 1985 and 1986.) So as you can readily see, all of these
would-be GOP presidents appear to be confused.
They apparently aren’t sure how long their term in office would count.
One
more thing: do you suppose these same Conservatives will listen to the voice of
the people should it be President Bernie Sanders or President Hillary Clinton
who sends someone to take Justice Scalia’s place next spring?
Come
to think of it, maybe the Republicans are right after all. Perhaps President Obama shouldn’t submit a nominee
to the court. It will be absolutely
fascinating to see what the Conservatives’ reaction will be when Mrs. Clinton
sends “First Gentleman” Bill Clinton’s name up for confirmation to the Supreme
Court of the United States. First Lady
Hillary Clinton refused to merely pour tea and serve cookies during Bill’s
administration. After all, now he would
need something to do while she runs the country, wouldn’t he?
What
say you? Would that be principle,
politics or circus?!!
RESPECTFULLY
SUBMITTED,
EDWIN
COONEY
No comments:
Post a Comment