Clarification: Supreme Court

Bill Neinast

Schedules are important on any trip involving air travel.  Arrival and departure times are not the only thing needed. The airlines’ reputation for arriving and departing on time and how well they keep your checked luggage on your schedule is equally of concern.

The same is true of political campaign schedules as well.  One of the three most important issues facing the nation was not due to surface until the third quarter of the year. An unanticipated event, however, kicked that issue into this quarter. 

The untimely death of Supreme Court Antonin Scalia forced the issue of the future of the Supreme Court (SCOTUS) into the primary campaigns.  The cat fights raging in those campaigns will significantly diminish the importance of this issue.

Notwithstanding the poor timing, however, the infantile bickering between the two political parties at both the congressional and campaign levels emphasizes several important facts about the issue.

First, there appears to be a complete lack of understanding about what the Supreme Court is, what it does, how it is organized, and who controls the organization.  

The number of justices are not cast in concrete.  Under the Constitution, SCOTUS consists of the Chief Justice and the number of associate justices fixed by Congress. That number has been fixed at eight since the Judiciary Act of 1869.  

Historians will recall that this act did not give pause to President FDR’s threat to “pack the court” by adding justices in 1937.  His avowed purpose was to get more favorable treatment of his “New Deal” legislation. 

When Justice Owen J. Roberts (not the same as Chief Justice John Roberts who saved OBAMACARE) switched his vote to approve one of FDR’s pets, the President dropped his threat.  Robert’s vote in that case is now erroneously known as “the switch in time that saved nine.”

So the court can function with more or less than nine as congress, not the President, sees fit.

Neither the Constitution nor statutes specify qualifications for justices of the court.  There is not even a legal requirement for justices to be lawyers. 

There is also no religious test for qualifying one to be a member of SCOTUS.  Recent letters and op-ed pieces in the Brenham Banner Press have bemoaned the fact that only Catholics and Jews are justices.  So what?  Conservatism and liberalism among the current legal scholars on the court does not appear to be based on religion.  Would just the religious beliefs of new justices change that balance?

There is also no time limit or requirement for appointing justices to fill vacancies on the court.  The Constitution simply provides that justices of the court shall be appointed by the President with the advice and consent of the Senate. When and how that is to be done is not specified.

Note, also, that there is no requirement for the Senate to approve every nominee the President chooses.  That body has the unfettered discretion to approve or disapprove any nominee.  

Review, for example, attitudes when the shoe is on the other foot.  In 1987, Democrat Ted Kennedy spearheaded a successful bitter fight to reject President Reagan’s appointment of the imminently qualified, but conservative, Robert Bork as a Supreme Court Justice.

So here’s the perspective.

Republican Senators are making a serious blunder in threatening to block any attempts by President Obama to replace Justice Scalia.  A better tactic would be to not say a word on the subject, let the President appoint whoever he pleases.  Then let the nomination die on the vine without any action.  

As noted, there is no schedule for filling vacancies on SCOTUS or for acting on appointments by the President.

This would put the issue of the makeup of SCOTUS back on schedule for the general campaign after the Presidential candidates are nominated in July.  

Whether the court will then be conservative or socialist for the next several generations will be one of the most important considerations in that political battle.


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