Unsettled Law

This is going to be ugly. Justice Scalia died unexpectedly, the Supreme Court is now down to eight justices, four conservatives, essentially four liberals, and decisions on hard issues now will end in a tie – lower court rulings will stand or the eight remaining justices will say come back and argue again later. Nothing will be decided, definitively – for a year and a half. The Senate confirms these justices, and it’s an election year, and the solidly Republican Senate said they’ll do no such thing. Senate Majority Leader Mitch McConnell made that clear – “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.”

All the Republican candidates agreed. They ain’t gonna do nothin’ – we’ll have a lot of unsettled law for quite some time – but the Washington Post’s Chris Cillizza argues that the Senate Republicans are making a big mistake here:

The reason for McConnell’s hard line isn’t tough to figure out. It’s the same reason everyone from Ted Cruz to Jeb Bush in the Republican presidential race called for the postponement of any nomination until a new president is elected in November: It’s what the GOP base wants.

This was inevitable:

The Republican base felt very strongly about the importance of judicial nominations before these past few years. But the Supreme Court rulings legalizing same-sex marriage and upholding the Affordable Care Act have convinced conservatives that the court is out of control and needs to be reined in by a Republican president committed to core principles.

Given that view, it would be political death for a Republican presidential candidate to advocate that President Obama be given the right to make a pick – and that pick be given a full and fair hearing in front of the Senate. Ditto McConnell – who is regarded as “too establishment” by some tea party types looking to make trouble for him in the Senate.

That’s understandable, but it’s still a mistake:

Saying publicly – and on the same day that Scalia died – that replacing the justice was a non-starter, Senate Republicans sent a clear message to the American voters: We aren’t even going to make a show of playing ball on this one.

Cillizza says they missed the obvious and elegant way to handle this:

Step 1: Say almost nothing about Obama picking someone to replace Scalia other than that the person will get a “fair hearing.”

Step 2: Convene the standard hearings on Judiciary for the nominee. Aggressively question him or her as you would any other nominee in Obama’s presidency.

Step 3: Never allow a vote on the nominee, using the 60-vote filibuster threshold as your best friend. (Fourteen Republicans would have to join the 46 Democrats and independents in the Senate to break said filibuster. That ain’t happening.)

That simple three-step process would get Republicans to the place where the base wants them to be – no Obama appointee to the court – without looking like the kids who took their ball home and refused to play the game because they didn’t like the rules. Obama proposed someone, the Republican majority in the Senate gave that person a chance, and decided that he or she didn’t meet their standards. Case closed.

There would have been minimal blow-back:

Would Obama and Democrats in the Senate, House and on the presidential campaign trail go ballistic about filibustering a court nominee? Sure, but it’s a much more defensible position for the center of the electorate that wants to believe the GOP can govern. Plus, do you really lose anything with the Republican base if you hold contentious and high-profile hearings where the GOP senators run the nominee through the wringer?

Now they don’t even get that high drama, and thus they lose:

With McConnell’s statement on Saturday night, the chance for Republicans to “win” on the court nomination becomes remote. Refusing to even take part in the process – even though that process could have easily yielded the GOP’s desired result – hands Obama and Senate Democrats a political cudgel to bash the GOP.

Oops. But it’s too late now. The Post’s James Hohmann reports on that:

Assuming the president picks a Hispanic, African American or Asian American – bonus points if she’s a woman – this could be exactly what Democrats need to re-activate the Obama coalition that fueled his victories in 2008 and 2012. Even if he does not go with a minority candidate, the cases on the docket will galvanize voters who are traditionally less likely to turn out.

And so it begins:

Last night in Las Vegas, for example, Hillary Clinton said it would be nakedly partisan and unconscionable if Republicans don’t give a hearing to the president’s nominee. And she emphasized the immigration case that the justices recently agreed to hear. “Because of his passing, there will be most likely a tie, four to four, on important issues that affect so many people in our country,” the Democratic front-runner said. “And the most important is the decision about President Obama’s actions under DACA and DAPA. If there is no new justice appointed, then as with other cases before the court, the decision that was decided will stay in place. And that was a bad decision.”

Keep in mind that a quarter of Nevada’s population is Hispanic. Beyond being a battleground in the presidential race, there is also an open Senate race to succeed Harry Reid. Democrats will nominate a Latina and Republicans will nominate a white guy who is already in Congress.

And it’s not just that:

Take abortion rights. Marco Rubio is against abortion even in cases of rape and incest. For women, the prospect of Roe v. Wade being overturned just became much more real. “When I’m president of the United States, I’ll nominate someone like Justice Scalia,” the Florida senator declared on the Sunday shows.

And environmentalists just this month saw the court put a stay on Obama’s Clean Power Plan. The next justice will be the swing vote who determines the future of coal in the United States. Though these sorts of cases mean that business interests will pour more money than ever into 2016 races, it could also help Democrats attract crucial suburban women who might lean to the right but worry about global warming.

More broadly, this could also undermine efforts by Senate Republicans to show that they are capable of governing and not just “the party of no.” Make no mistake: The upper chamber will grind to a standstill if the GOP follows through on this threat. Democrats who are inclined to work with them promise to stop doing so if Republicans play hardball.

So the guys who can’t govern, and maybe don’t really want to even if they win, just made things worse for themselves and fired up the Democrats. There’s a parallel analysis in the New York Times – what were they thinking?

Michael Tomasky gets specific about that:

Here’s a name you need to get to know: Tino Cuellar. Who is Tino Cuellar? The potential Supreme Court nominee who could tie the Republican Party in the most Gordian knots of any of them, and who could thereby alter the presidential race dramatically as well.

Yes, yes; Barack Obama should choose the person best qualified for the job with whom he is most intellectually comfortable. But should that person be Mariano Florentino Cuellar, there could be plenty of benefits aside from having a brilliant, young, Latino person on the court.

He’s a Republican nightmare:

Cuellar, 43, is an associate justice on California’s State Supreme Court. He was born in Mexico. He is a naturalized U.S. citizen. He grew up on the border, and his family moved to California’s Imperial Valley when he was a teenager. He was smart and decided he wanted an education. He got one, all right. Get this resume: undergrad, Harvard; law school, Yale; master’s and doctoral degrees, Stanford. …

He worked at the White House, he worked in the Treasury Department, he taught law at Stanford. “He’s a brilliant guy,” says Samuel Bagenstos, a law professor at the University of Michigan who knows Cuellar. “He’d be the justice with the most wide-ranging intellect since William O. Douglas.” (Bagenstos asked me to note that he is backing no single candidate and thinks the president has many good choices.)

He was elevated to California’s high court by a unanimous bipartisan vote, and given the highest possible rating by the California Bar Association. He is married to a U.S. district judge, Lucy Koh, who is a formidable intellect in her own right – the Senate confirmed her unanimously, 90-0, when Obama nominated her to that position in 2010. And they have two kids.

Now imagine Obama nominating this guy: 

We know almost to a certainty that the Republicans will oppose anyone. Mitch McConnell said it, all the presidential candidates said it, everyone says it, and everyone knows it. For a Republican senator to vote for Barack Obama’s replacement of the great Antonin Scalia would be as sure a form of instant political suicide as one can imagine in this country. There is just no way. And it may not even get to a vote. They’ll just sit on it, not even scheduling confirmation hearings, saying the American people deserve a voice in this nomination.

And Obama will say… that I’m still the president and am going to be president for a while yet, and we have no modern precedent for letting the court have an even number of members.

And then Americans will learn about Cuellar’s life story. The fancy universities, the four degrees, the testimonials to his intellect that will stream in. And of course he’d be not the first Latino, but still, the second out of nine, and the first Mexican-American (Sonia Sotomayor is Puerto Rican), who constitute by far the largest demographic group among American Latinos. …

Let America watch as old white-guy senator after old white-guy senator goes on TV to say “Oh, it’s nothing against Mr. Cuellar, it’s all about Obama, and the people’s voice.” And let America watch as nominee Donald Trump says the same thing. Or even Marco Rubio or Ted Cruz – in some ways that’s even worse for the GOP, to have a Cuban-American (or Cuban-Canadian-American) stand up and say this Mexican-American doesn’t belong on the Supreme Court. There are around 33 million Mexican-Americans in the country – and around 2 million Cuban Americans. How well do you think the math on that works for the GOP?

So Reince Priebus, who in his silly little autopsy in 2013 insisted that Republicans were going to be the inclusive party and who still has the gall to talk like that today, even as his party’s voters convert a howling xenophobe into their front-runner, would have quite a situation on his hands. And we get to Election Day, and poor Cuellar has been sitting there for seven months after nomination without even having had the courtesy of a committee hearing.

The Republicans would lose all the Hispanic vote this time, not that Obama will nominate the guy: 

I don’t think Obama should nominate Cuellar for these political reasons. But if he decided to nominate him, boy would it be great to see those people squirm.

Who are these people? In 2011 Doug Muder identified them as not a Tea Party but a Confederate Party that refuses to accept they’ve lost:

After the U.S. forces won on the battlefield in 1865 and shattered the organized Confederate military, the veterans of that shattered army formed a terrorist insurgency that carried on a campaign of fire and assassination throughout the South until President Hayes agreed to withdraw the occupying U. S. troops in 1877. Before and after 1877, the insurgents used lynchings and occasional pitched battles to terrorize those portions of the electorate still loyal to the United States. In this way they took charge of the machinery of state government, and then rewrote the state constitutions to reverse the postwar changes and restore the supremacy of the class that led the Confederate states into war in the first place.

By the time it was all over, the planter aristocrats were back in control, and the three constitutional amendments that supposedly had codified the USA’s victory over the CSA – the 13th, 14th, and 15th – had been effectively nullified in every Confederate state. The Civil Rights Acts had been gutted by the Supreme Court, and were all but forgotten by the time similar proposals resurfaced in the 1960s. Blacks were once again forced into hard labor for subsistence wages, denied the right to vote, and denied the equal protection of the laws. Tens of thousands of them were still physically shackled and subject to being whipped…

The Confederates sort of won and live on in the Tea Party:

The essence of the Confederate worldview is that the democratic process cannot legitimately change the established social order, and so all forms of legal and illegal resistance are justified when it tries… The Confederate sees a divinely ordained way things are supposed to be, and defends it at all costs. No process, no matter how orderly or democratic, can justify fundamental change.

Nancy LeTourneau sees that now:

This is also reminiscent of Grover Norquist’s response back in 2003 when talking about how the GOP would handle a Democratic presidency in the “permanent Republican majority.” He said, “We will make it so that a Democrat cannot govern as a Democrat.”

That is what we are seeing played out right now with respect to a nomination to the Supreme Court. Republicans are questioning the very legitimacy of our current President to perform his Constitutional duties. That’s because the social order is changing (both in terms of cultural issues and demographics) and, for them, any form of resistance is justified.

That’s a bit fanciful, so Kevin Drum offers Democrats Will Be Fighting the Ghost of Robert Bork This Year:

His defeat for a Supreme Court vacancy in 1987 remains absolutely central to contemporary Republican views of the Supreme Court and is largely responsible for their longstanding bitterness over the direction of the court.

No, really, but that requires a little background on Robert Bork – born in Pittsburgh, just like Andy Warhol. He was Nixon’s solicitor general – he argued the administration’s case on this and that – but became famous on October 20, 1973, when Nixon fired Watergate Special Prosecutor Archibald Cox, who said he had to have those Oval Office tapes. Nixon ordered Attorney General Elliot Richardson to fire Cox. Richardson resigned rather than carry out that order. Next in line was Deputy Attorney General William Ruckelshaus, who also resigned rather than fire Cox. That immediately made Bork the Acting Attorney General. Bork fired Cox, which was found illegal in November. He was removed from office. The Justice Department didn’t appeal the ruling – Cox said that he didn’t want his job back, and that was that. Bork later said that Nixon had promised him the next seat on the Supreme Court for his heroics – but Nixon was soon gone. In 1987, Ronald Reagan nominated Bork for the Supreme Court – for being the one guy a beleaguered Republican president could turn to in a pinch. Bork was a real hero on that side of things.

This was an in-your-face nomination. The then-Democratic Senate said not to do this – Joe Biden and Ted Kennedy said that the loudest – but Reagan sent to nomination over anyway, and this was more than the Nixon thing. Bork didn’t like the Voting Rights Act of 1965 – the federal government had no business telling the states how to run their elections, no matter what the states did. That wasn’t in the Constitution – none of the civil rights stuff was. And there was the matter of abortion. There was Griswold v. Connecticut, 381 U.S. 479 (1965) – the Supreme Court held that even though there was no such thing in the Constitution, explicitly, in so many words, there really was an expected “right to privacy” in there. You didn’t see those words? It’s one of those penumbra things – the Connecticut State Police could not bust into your bedroom and arrest you for possession of birth-control pills or condoms. It wasn’t their business. That shouldn’t be the government’s business. They ruled that was implied in the Constitution – and that led to Roe v. Wade, 410 U.S. 113 (1973) – a woman’s decision to seek an abortion was her business, in the first trimester, when the viability of the fetus wasn’t an issue. That was a private and personal matter, while after the first trimester there was another life to consider. That decision was based on Griswold, as precedent – and Bork had long maintained Griswold had been decided wrongly. There is no “right to privacy” in the text of the Constitution, so there is no such right, and if so, the Roe decision was bogus too. He was one of the first originalists. Abortions should be illegal. Everyone had been reading things into the Constitution that just weren’t there.

On October 23, 1987, the Senate denied Bork’s confirmation, and that’s where Kevin Drum says this current stuff all started:

When Democrats think of Bork, it’s primarily as a reactionary anti-abortion zealot who richly deserved to be voted down in the Senate. Republicans decidedly don’t. They regard him as a brilliant legal scholar who was eminently qualified to serve on the Supreme Court until he was torpedoed by disgracefully unscrupulous attacks from Teddy Kennedy and Joe Biden. Bork may not have been the first Supreme Court nominee to be rejected by the Senate, but he was the first during the politically charged post-Roe era, and the first to be rejected on a nearly party-line vote over ideology, rather than scandal.

That seat eventually went to Anthony Kennedy, who turned out to be a centrist conservative. Two years later, partly to avoid another Bork-like conflagration, George H. W. Bush nominated David Souter to an empty seat. But Souter turned out to be a liberal. The year after that, Bush nominated Clarence Thomas who was confirmed but only barely and only after an epically ugly fight.

That four-year period from 1987 to 1991 dominates the way Republicans think about the Supreme Court. It represents two things to them: that Democrats have no qualms about waging scorched-earth campaigns of utter ruthlessness and that Republicans need to be unceasingly alert to weak-kneed betrayal from allegedly conservative court nominees.

This is something Democrats may not understand:

This trauma runs very deep, and Democrats simply don’t have anything like it in their recent history. Since Roe, Democratic presidents have nominated four justices, and all four have been confirmed with only the usual amount of political squabbling and partisan trash-talk. The Republican attacks on Sotomayor and Kagan were patty-cake compared to Bork and Thomas.

Because of this history, Republicans are much more sensitive to Supreme Court politics than Democrats. You can see this in the peculiarly common belief on the right that John Roberts is a conservative traitor because he voted to uphold Obamacare. It doesn’t matter that his reasoning was perfectly sound. He voted the wrong way, and that immediately roused memories of Kennedy and Souter and judicial betrayal.

In the same case, both Elena Kagan and Stephen Breyer voted to uphold limits on Medicaid expansion. How did Democrats react? Basically with a yawn. Most of them vigorously disagreed with Kagan and Breyer, but that was it. Nobody suggested they were traitors to the cause.

And here’s the point:

What all this means is that Republican voters are likely to be more fired up by the Scalia vacancy than Democrats. And they’re going to stay fired up by Fox News and the rest of the gang. If Democrats want to match this, they’re going to have to really work at it.

They’re working at it. Mitch McConnell is helping them. All the Republican candidates are helping them. They didn’t have to do this, but maybe, given history, maybe they did. We’ll have unsettled law for the next year or two.

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About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
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