A short history of the confirmation process; on the hidden costs of not holding a hearing for Merrick Garland; why Nevadans specifically will suffer if a ninth justice is not appointed to the supreme court

 

“I argued against it at the time. I said both for Supreme Court and in Cabinet should be 60 because on such important positions there should be some degree of bipartisanship,” Schumer, a New York Democrat and the incoming Senate minority leader, told CNN’s Dana Bash. “I won on Supreme Court, lost on Cabinet. But it’s what we have to live with now.”

Oh, we are about to find out how much he won by indeed.

Later on, I’ll explain why you should put that pity party for Merrick Garland on hold for now.

But before, let’s take a step back and get everyone caught up.

You may recall (a lot happened in 2016/let’s not make assumptions) that former Supreme Court justice Antonin Scalia passed away while vacationing in Texas. Shocking and very sad indeed.

Upon his passing though, we are now left with eight supreme court justices.

Although my friends in the press (even some that went to law school, shame!) like to equivocate “liberal” and “conservative” politics to judicial philosophies, they are not the same. And frankly, not even that similar in practice.

For simplicity sake, but we will not sacrifice accuracy, understand that I mean the term “conservative” here to mean a judge unlikely to broadly interpret the meaning of a law, and a “liberal” as someone more open-minded to have judges read the law in a more creative (most importantly, practical in their eyes) way.1)Go read Kelo v. New London if you don’t understand. The dissent defending the small property owner from the corporate takeover of her home comes from Justice O’Connor, and signed by J. Scalia! Hippies.

I hope that helps.

Back to our friends on the supreme court. Right now there are eight justices on the court. Some silly members of the press like to describe the current supreme court as a “4-4 split.”

That’s utter nonsense. Law just isn’t that simple to put clear titles on judicial philosophies. It doesn’t do these professionals justice.

My point being that if/once a ninth justice is appointed, no particular right or obligation of the government is immediately at risk. Again, the process is more complicated than that.2)The supreme court does not have the power as omniscient overlords of the country to just randomly select an issue to rule on. Instead, legal issues must be challenged, then appealed through the appropriate venues. Dred Scott’s legal strategy to defeat slavery was 10 years in the making, at least. So yes, you can accomplish political objectives through the courts, but darn, it’s going to take some time. For those of you concerned about a woman’s right to choose, take a look at what happened in Texas last year.

For Nevadans, however, this matters a great deal. But I will get to that in a moment.

Initially, we need to assess the likelihood of President-elect Trump being permitted to appoint the 9th Justice.

We First Need to Understand How a Supreme Court Justice is Appointed to the Supreme Court

..You know what that means?! That’s right, our first instance of the year to break out our pocket constitutions!3)An open invitation is out to noted-pocket-Constitution-enthusiast, Khizr Khan to join us for a session this year.

Let’s flip to Article II, Section 2. The initial “[h]e” refers to the President:

He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.4)emphasis added, Source

The question is then, what does the “advice and consent” of the senate entail? More importantly, (since we’ve established a precedent since 1955 that “advice and consent” means the senate holds a hearing, then a vote), how soon must the senate act to confirm a potential Justice?

A question like that can only be answered with precedent, so let’s take a quick glance at history.

These confirmation hearings have only been happening for less than 90 years, with the first hearing in 1925:

The practice started in 1925, when nominee Harlan Fiske Stone faced some opposition from liberal senators over his career as a corporate lawyer prior to becoming President Calvin Coolidge’s attorney general.

One liberal senator called Stone a “tool of the House of [financier J.P.] Morgan” who had spent “all of his life in the atmosphere of big business.” To assuage the opposition, Stone agreed to appear before the committee and answer questions.5)Maybe Sen. Lee is right about the term limit stuff…I mean how long can we really let Bernie keep doing this??

The confirmation hearings did not become customary until 1955 when southern senators tried to block the appointment of Justice Harlan II in response to Brown v. Board of Education. Perhaps correlated with the court embracing substantive due process, confirmation hearings became the norm.

Last year, we heard Leader McConnell refer often to the “Biden rule” when it comes to supreme court appointments to justify not holding a hearing for Merrick Garland. You deserve to hear what then-Senator Biden said.

It should be noted, however, that this turned out to be only speculation. President Bush did not nominate a justice before the 1992 election.6)Here’s more anti-Biden content I didn’t find very persuasive, but you may.

And yes, the democrats got lucky as this would have been a horrible precedent to set.

To me, in trying to interpret this clause of the constitution in good faith7)Please look at all of my pro-2a writing from the past year if you doubt that I write about law in good faith, it can be only reasonably constructed to mean that the senate must act within a reasonable amount of time.

I say this because the constitution does not say that if a Justice dies in an election year, that the public has to wait until there is an election for the people’s business to be done. Logically, it is to the contrary. The president is elected for a complete 4-year term. Not 3 1/2. And the President may use the full powers of his office while he is still there.

It used to be a matter of luck as to if a President will be permitted to appoint a Supreme Court justice, all depending on if a justice retires8)whether on his or her own volition. I would also point out that the famous Clarence Thomas everyone knows about took place in October of 1991, a year before an election. Among the reasons to not support Mr. Thomas, this was not one of them..

Leader McConnell changed that last year.

The Consequences of Merrick Garland Not Getting a Hearing

Remember Merrick Garland? supreme court

Because 2016 was an election year, President Obama decided to nominate what he (and a lot of other people, read how Sen. Collins describe the man), considered to be a centrist or moderate. There’s isn’t the slightest thing “left” about Merrick Garland9)Recall Bernie saying during the primary that if he won the Presidency, he would demand that Garland’s name be withdrawn.

Besides honorably and faithfully executing the job managing/writing for the D.C. Circuit, his history also includes the successful prosecution of Timothy McVeigh in the 1990s. I want to talk a moment about this part of his history.

In a society like ours that is based in law/rule & order, when a horrendous attack occurs like what happened in Oklahoma City, it is imperative that justice be administered in a manner that reflects our societal values.

It is from that perspective that I would argue that if it is appropriate to refer to any member of the bar as a hero, Merrick Garland qualifies.

Read this NPR history of the Oklahoma City Bombing if you disagree. Seriously, his decision making in tough circumstances is very impressive.

Politics aside,10)well that’s impossible. Let’s not forget that President Obama put the Republicans in a very difficult spot here. this man deserved a hearing for the Supreme Court just based on his past service.

I think Leader McConnell made a grave error by not allowing a hearing. Just because you can do something doesn’t mean you should.11)Sen. Hatch of Utah has referred to Mr. Garland has a “consensus nominee” and has “no question” that Mr. Garland would be confirmed.

Don’t we want to send a message to young attorneys that this is the type of man you should model yourself after? Especially in these times when we need good role models more than ever.

..And I say all of this as someone who was very disappointed in this choice by President Obama.

It also doesn’t matter what I think. What’s done is done.

But what now?

Now the roles are reversed from last spring/summer. Remember that ineffectual #DoYourJob campaign the democrats ran against the senate republicans that would not hold a hearing?

Entirely ineffective.12)I don’t want to be mean to my democrat friends, but am I wrong? To present an opposition, but not really mean what you say..what good does that do? Recall they tried to emphasize that senate judiciary chairman, Iowa senator Chuck Grassley, was holding back the confirmation process and promised to make his reelection difficult. Sen. Grassley won reelection 60-35%. Just another failed “red-line”.

Worse, it normalized the behavior of the senate Republicans so that a member of the public not-so-attuned to the issue might just see filling the supreme court no different than any other political disagreement.13)I am starting to think the GOP thinks this way too. They won’t for long.

The republicans now want the democrats in the senate to hold confirmation hearings for a justice of President-elect Trump’s choosing. But as you can imagine, the senate dems are less-than-thrilled with Merrick Garland not getting a vote. Which brings us to Chuck Schumer, the new minority leader. With only 52 of the needed 60 votes in the GOP caucus, Sen. Schumer will have to ascent to a hearing.

Let’s check in on the odds:

Oh well then. Did you catch the rhetorical trick?14)This man is different than our beloved Harry Reid. Mr. Reid is a blunt man. Mr. Schumer plays the rhetoric game like your old school Republicans

“If they don’t oppose someone who’s really good, we’re going to oppose them tooth-and-nail.” Notice he didn’t come out and say (what I likely think is his actual position), that he will oppose any nominee because Mr. Garland didn’t get a hearing, just that he is doing what the senate has always done, advise and consent.

The terms he is using are “really good” and “mainstream” to describe a judge he would permit a hearing for.

A smart reporter asked Sen. Schumer if he think’s J. Scalia was “mainstream.”

His response: “I don’t think he’s in the mainstream.” I hope Leader McConnell knows what that means.

Regardless, Leader McConnell held a presser the next day to declare that Sen. Schumer’s position is untenable and “something the American people simply will not tolerate.”

I got some bad news for our good Leader, I’m not convinced the public really cares.

At least not according to what we witnessed last election cycle.

Why Nevada Residents in Particular Should be Concerned With the Supreme Court Stalemate

Justice Sotomayor, speaking in Minnesota in October 2016, was asked about the effect of having 8 justices on the supreme court

When we take cases it’s because there’s a pressing legal problem that has divided the courts below, and justice across the country is being administered in an unequal way, because courts in different parts of the country are deciding the exact same issue in a different manner[.]

Unequal is one way to put it.

I assume there’s a good reason that, as a Nevadan, you made a choice to not live in California.

One of those reasons likely is the difference in regulation between the two venues. I don’t think it’s unreasonable to assert that California is very regulated, while Nevada is not.

And this is good! That’s why we have local government. If the nice folks of California want a large labyrinth of regulation, bless them.

But why should we care? See the pink area below.

Image result for circuit court map

That’s right. You live in 9th circuit, which is dominated by population by California (and less so Washington, but another jurisdiction that shares California values.)

Because the vast majority of the circuit is from California, the 9th Circuit bench reflects that reality and subsequent politics. (Again, different does not necessarily mean bad).

This means the federal judges deciding how the federal law applies to your life are likely from California and will apply California values.

As J. Soyomayor points out, the supreme court rules most often when there is what’s called a “circuit split” meaning judges from the 9th circuit have come to a different legal conclusion than those of, let’s say, the 5th15)This is very possible.

Before, if the California judges of the 9th Circuit went too far, the supreme court could step in and say “Hey now.”

Without a 9th Justice on the supreme court, this will not happen.

Jeff Toobin of The New Yorker describes what happened with the very first case of a eight-member supreme court/will provide a good example:

That’s what happened with Friedrichs v. California Teachers Association, which concerned the efforts of public-employee labor unions to collect fees from non-members. Undermining the financial viability of unions, which generally support Democratic candidates, has long been a conservative cause; on the Supreme Court, it is most closely associated with Samuel Alito. The Friedrichs case was argued in January, while Scalia was still on the Court, and the five conservatives seemed poised to deliver a victory. But, with Scalia gone, the Court split, and, because liberal judges had prevailed in the Ninth Circuit, the status quo favoring union rights remained intact. As Noah Feldman observed, “There has been a sense of empowerment among liberals on a whole bunch of appellate courts, in which Obama has appointed a majority of the judges. They know that if their cases go to the Supreme Court they will be protected by four-to-four votes.”

I think Friedrichs was decided correctly16)conservatives strongly disagree with me on this, but I hope you see my point.

There’s no real check on the 9th Circuit judges right now. And these folks are smart enough to know that. Without any risk of being overturned, what other policy position will they embrace?

Last year, they told Nevadans that we don’t have the power to write our own gun laws!17)Among other things

Expect the 9th Circuit to become more and more blase the longer the supreme court remains deadlocked 4-4.

So I opened the discussion with a simple question, how do we get a 9th justice on the supreme court?

As you can see, the politics behind this is both messy and unprecedented. But unfortunately for Nevadans, it is just as urgent.

The President-Elect happened to hold a press conference this morning, commenting on this issue18)I will confirm this quoted portion of the transcript myself. I did see him say this.:

Supreme Court judge. So, as you know, I have a list of 20. I’ve gone through them. We’ve met with numerous candidates. They’re outstanding in every case. They were largely recommended and highly recommended by Federalist Society. Jim DeMint was also very much involved, and his group, which is fantastic, and he’s a fantastic guy… So between Leo and Jim DeMint and some senators and some congresspeople, we have a great group of people. I’ll be making the decision on who we will put up for justice of the United States Supreme Court, a replacement for the great, great Justice Scalia. That will be probably within two weeks of the 20th. So within about two weeks, probably the second week. I consider the first day because we’ll also be doing some — some pretty good signings and I think what we’ll do is we’ll wait until Monday.

That will be our really first business day as opposed to doing it on Friday, because on Friday, people are going to have a very good time at the inauguration, and then Saturday, as you know, we’re having a big church service and lots of good things are happening. So our first day — and you’ll all be invited to the signings, but we’ll be doing some pretty good signings on Monday and Tuesday and Wednesday and Thursday and Friday, and then also the next week. And you’re all invited.

But on the Supreme Court, I’ll be making that decision, and it will be a decision which I very strongly believe in. I think it’s one of the reasons I got elected. I think the people of this country did not want to see what was happening with the Supreme Court, so I think it was a very, very big decision as to why I was elected.

There you have it. We will see you “two weeks of the 20th.”

By my count, there’s only one judge that will win 60 votes in this senate. Yeah that’s right, rhymes with Farland.

It will be curious to see if conservative Nevadans begin to push for the seat to be filled, less concerned with whom.

Until then, thanks for reading. As always.

 

 

 

Footnotes   [ + ]

1. Go read Kelo v. New London if you don’t understand. The dissent defending the small property owner from the corporate takeover of her home comes from Justice O’Connor, and signed by J. Scalia! Hippies.
2. The supreme court does not have the power as omniscient overlords of the country to just randomly select an issue to rule on. Instead, legal issues must be challenged, then appealed through the appropriate venues. Dred Scott’s legal strategy to defeat slavery was 10 years in the making, at least. So yes, you can accomplish political objectives through the courts, but darn, it’s going to take some time. For those of you concerned about a woman’s right to choose, take a look at what happened in Texas last year.
3. An open invitation is out to noted-pocket-Constitution-enthusiast, Khizr Khan to join us for a session this year.
4. emphasis added, Source
5. Maybe Sen. Lee is right about the term limit stuff…I mean how long can we really let Bernie keep doing this??
6. Here’s more anti-Biden content I didn’t find very persuasive, but you may.
7. Please look at all of my pro-2a writing from the past year if you doubt that I write about law in good faith
8. whether on his or her own volition. I would also point out that the famous Clarence Thomas everyone knows about took place in October of 1991, a year before an election. Among the reasons to not support Mr. Thomas, this was not one of them.
9. Recall Bernie saying during the primary that if he won the Presidency, he would demand that Garland’s name be withdrawn.
10. well that’s impossible. Let’s not forget that President Obama put the Republicans in a very difficult spot here.
11. Sen. Hatch of Utah has referred to Mr. Garland has a “consensus nominee” and has “no question” that Mr. Garland would be confirmed.
12. I don’t want to be mean to my democrat friends, but am I wrong? To present an opposition, but not really mean what you say..what good does that do? Recall they tried to emphasize that senate judiciary chairman, Iowa senator Chuck Grassley, was holding back the confirmation process and promised to make his reelection difficult. Sen. Grassley won reelection 60-35%. Just another failed “red-line”.
13. I am starting to think the GOP thinks this way too. They won’t for long.
14. This man is different than our beloved Harry Reid. Mr. Reid is a blunt man. Mr. Schumer plays the rhetoric game like your old school Republicans
15. This is very possible
16. conservatives strongly disagree with me on this
17. Among other things
18. I will confirm this quoted portion of the transcript myself. I did see him say this.
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