![]() ![]() ![]() If the Court is now deadlocked at 4-4, the decisions of the lower courts will stand. There are a number of major cases this session, many of which were expected to draw 5-4 decisions with Justice Scalia in the majority. There is an impact, however, which grows out of delay in filling the ninth seat. Conversely, Republicans expect a new GOP president to strengthen the conservative majority. Liberals hope and believe a justice appointed by Obama or a new Democratic president will shift the balance on the Court and lead to more liberal decisions. And I don’t think the American people want a court that will write the Second Amendment out of the constitution.” I don’t think the American people want a court that will mandate unlimited abortion-on-demand, partial birth abortion with taxpayer funding and no parental notification. Cruz, for example, said, “I don’t think the American people want a court that will strip our religious liberties. Heller, the 5-4 decision in which the Court found in the 2nd Amendment an individual right to bear arms (at home for self-defense). The fear is that a third Obama justice would tip the balance on many issues in the liberal direction.įrequently mentioned is D.C. Those 5-4 decisions are apparently on the mind of conservative Republicans. This focus on partisanship, especially given the many major cases decided by a 5-4 majority, appears to have led to a higher percentage of Americans disapproving of the Court than ever before. It has become the case that justices are assumed to reflect the politics of the president who appointed them. A Pew Research Institute poll conducted last July found that 70% of Americans believe the justices “are often influenced by their own political views.” Under those circumstances, control of the Senate and the Judiciary Committee will be crucial to the next president. The battle over the nomination of Scalia’s successor will not only impact the on-going presidential election, as it already has, but also the battle for control of the Senate, particularly if Republicans are successful in delaying the process until January. This not only twists the meaning of “advise and consent,” but seeks to expand the normal definition of a “lame-duck president.” A lame-duck president is one serving out his term after his successor has been elected. He asserted on ABC’s This Week with George Stephanopoulos, ““The Senate’s duty is to advise and consent… We’re advising that a lame-duck president in an election year is not going to be able to tip the balance of the Supreme Court.” ![]() Senator Ted Cruz (R-TX) promised to lead a filibuster in the Senate. That nomination was, however, defeated by a bipartisan filibuster principally on ethical questions.Īs if to underline the partisan nature of the blanket rejection of any Obama nominee, all six of the Republican presidential candidates have taken that position. Some may point to the 1968 rejection of President Lyndon Johnson’s nomination of Abe Fortas, already on the Court, to become Chief Justice. There are no examples of the Senate refusing to confirm such a nomination. But, the claim that this constitutes “standard practice” is an effort to create a precedent where none exists.Įlection year nominations to the Supreme Court are extremely rare. Grassley relies on his careful use of the phrase “nominated and confirmed” to create the 80 year span. The Senate did confirm current Justice Anthony Kennedy, appointed by President Ronald Reagan, in 1988 (although he was nominated in 1987). Grassley is apparently referring to President Franklin Roosevelt’s nomination of Justice Frank Murphy as the last time a justice was “nominated and confirmed” during a presidential election year. Senate Judiciary Committee Chairman Chuck Grassley (R-IA) claimed, “… it’s been standard practice over the last nearly 80 years that Supreme Court nominees are not nominated and confirmed during a presidential election year." Within minutes of the news of Antonin Scalia’s death reaching Washington, Majority Leader Mitch McConnell declared, “The American people should have a voice in the selection of their next Supreme Court Justice… Therefore, this vacancy should not be filled until we have a new President.” It hardly seems to fall within the Senate’s role of advice and consent to prejudge and oppose a still unnamed nominee. Never before have we seen the Senate’s majority, speaking through its leadership, challenge the president’s Constitutional responsibility to fill vacancies on the Supreme Court. Politicization of the Supreme Court may be reaching a new high water mark. ![]()
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